Daily Archives: January 20, 2010

NY Times: “The legal team for the defense includes Brian Raum, Charles J. Cooper, David Thompson, Andrew Pugno, James Campbell, Jordan Lorence, Nicole Moss, Howard C. Nielson Jr. and Peter A. Patterson . . . Professor Gary Segura, a political scientist at Stanford University, said that no other minority groups in America — including undocumented aliens — have been the target of more restrictive ballot initiatives than gay men and lesbians. His testimony provided an overall examination of political power of gay men and lesbians as their push for political acceptance is ending its fourth decade . . . ”

Wall Street Journal: “We decided to look into the matter, resulting in this WSJ piece about how a handful of judges were starting to rebel against imposing long sentences that recommended by federal sentencing guidelines. As long as these individuals didn’t actually molest children, the judges said, their punishment shouldn’t be greater than some child molesters and other violent criminals.”

Indian Express: “The surrogate twins [born in India] of a German couple continue to be in no-man’s land . . . Subramanium told the apex court that the German embassy had said its laws were firm that surrogacy was a punishable offence, leaving little room for the children to be granted visas as German citizens.

Education Week: “Juneau said that to qualify for the federal money, Montana would have to weaken local control of schools, change how it evaluates teachers in ways that could violate labor contracts and possibly agree to transfer teachers from one district to another.”

NC Family Policy Council: Religious freedom is ‘a fundamental, inalienable right for all people, religious and nonreligious’ that is protected by the United States Constitution and other legal provisions, according to a joint statement issued last week by a diverse group of conservative and liberal experts from the nation’s religious and legal communities. Produced by Wake Forest University Divinity School’s Center for Religion and Public Affairs, the statement, entitled ‘Religious Expression in American Public Life: A Joint Statement of Current Law,’ was released on January 12 at the Brookings Institution in Washington, DC. It addresses the role of religion in the public square in a question and answer format, including religion and politics, religious expression in the workplace, and religious gatherings on government property . . . ”

Howard Mintz provides this report at Mercury News. Excerpt: “Ryan Kendall, a plaintiffs witness, has finished his testimony on undergoing “conversion therapy” as a teenager, testifying that he was forced to attend the sessions for nearly two years by his parents, who were outraged he was gay. Prop. 8 attorney James Campbell asked Kendall just a few questions on cross-examination, trying to get him to concede that some people may try to convert from being homosexual voluntarily. But Kendall would not admit that point, saying, ‘It is my experience that people don’t want to go to programs like NARTH (the acronym for the Encino facility that conducts such therap).’”

Ekklesia: “Australian Quakers have agreed to lobby their government for a change in the law so that same-sex couples can marry on an equal basis to mixed-sex couples. The news follows a similar decision by British Quakers last year.”

NY Times: “While opponents of same-sex marriage worry that schools will teach that gay and straight relationships are equal, many supporters focus on a different, but still child-centered, issue: What about the children now being raised in families headed by gay men and lesbians? How does the lack of marriage benefits for their parents affect them? . . . ‘The real question is whether same-sex relationships benefit children to the same extent that living with a married mother and father does, and we believe they do not,’ said Peter S. Sprigg, senior fellow for policy studies at the Family Research Council, the conservative Christian organization. ‘Children do best when raised by their own biological mother and father who are committed to one another in a lifelong marriage.’”

ADF attorney Austin R. Nimocks writing at The Christian Post: “Yet, as I’m listening to all of the testimony, I keep asking myself this question: why are we having this debate here? Moreover, should we even be having this debate at all? After all, California has had this debate twice already, with both instances ending in the voters deciding that marriage shall remain what it always has been: one man one woman. Thus, one could make a reasonable argument that this debate is old hat and unnecessary. However, even if it is appropriate to again have this debate, why here? Aren’t changes to social policy things that belong to the legislative process (which includes the initiative), or does it really belong to one judge?”

Breitbart (AP): “Around 200 supporters of Dutch anti-Islam politician Geert Wilders demonstrated outside an Amsterdam court Wednesday at the start of his criminal trial for allegedly inciting hate against the Netherlands’ Muslim minority.”

Breitbart (AP): “The International Olympic Committee is recommending the establishment of special medical centers to deal with cases of athletes with ambiguous sexual characteristics.”

NY Times: “Eight men were arrested on Wednesday in Malaysia in connection with the firebombing of a Pentecostal church last month, one in a series of attacks that has targeted a dozen Christian churches, the police said.”

Committee for Justice: “While most of the buzz about the impact of Scott Brown’s election to the Senate has centered on President Obama’s legislative agenda – particularly health care and cap and trade – the impact on his judicial and executive branch nominees, whose fates are completely dependent on the Senate, will be at least as great. It is no coincidence that Erroll Southers, Obama’s controversial pick for the Transportation Security Administration, withdrew his nomination this morning . . . ”

FoxNews: “The agreement Tuesday says that 17-year-old Rifqa Bary will stay in a foster home under state custody in Columbus until she turns 18 in August. After that, she’ll be an adult and free to live where she chooses.”

Christian Newswire: “It has been one year since President Obama was inaugurated, yet he still has not appointed an Ambassador at Large for International Religious Freedom.”

FoxNews: “The State Department has cleared the way for the return to the United States of two prominent Muslim scholars once accused of having ties to terrorism, a spokesman said Wednesday.”

“Lambda Legal today filed suit against the federal government in the U.S. District Court for the Northern District of California. The lawsuit requests an order directing the U.S. Office of Personnel Management (OPM) to obey prior rulings by Ninth Circuit U.S. Court of Appeals Chief Judge Alex Kozinski awarding spousal health insurance benefits to Ninth Circuit judicial attorney Karen Golinski.”

The Complaint (pdf format)

Advocate: “The NOH8 Campaign on Wednesday announced that Cindy McCain, the wife of former Republican presidential nominee Sen. John McCain, has posed to demonstrate her support of marriage equality.”

CNN: “Focus on the Family, a Christian non-profit group, said it will air its first Super Bowl spot during the upcoming game. The 30-second ad will feature Tim Tebow, a former quarterback with the University of Florida’s Gators and 2007 winner of the Heisman Trophy, along with his mother Pam . . . The Tebows decided to participate in the ad ‘because the issue of life is one they feel very strongly about,’ the Colorado-based organization said in a press release.”

CNSNews: “A bill currently before the Senate would empower the Obama administration to nationalize the student lending industry, eliminating the federally subsidized private loans millions of university students rely on to finance their educations.”

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

The MP3 runs just under 13 minutes.

ADF attorney Austin R. Nimocks appeared on the Hugh Hewitt Show yesterday to provide this update on the Proposition 8 trial.

The MP3 runs 5 minutes.

Jonathan Rauch v. Maggie Gallagher. More information at here.

Topeka Capital-Journal: “Former Attorney General Phill Kline lied to the Kansas Supreme Court, misled a Johnson County grand jury investigating an abortion provider and discussed an ongoing case on ‘The O’Reilly Factor,’ a conservative talk show. Those are among the grounds bringing Kline, who also is a former Johnson County district attorney, before the Kansas Board for Discipline of Attorneys, according to the formal complaint released Tuesday by the disciplinary administrator’s office . . .”

One News Now: “Republican State Senator Scott Rupp has introduced a bill that would protect his state from abortion mandates proposed in healthcare reform . . . ”

Bluegrass Institute: “Want to follow what state lawmakers are doing to improve education, pass a balanced budget, lower taxes, modernize labor policy, stand up for Kentuckians against Washington’s health care push and close the gap on public pensions? It’s as close as the click of your mouse at www.freedomkentucky.org, the Bluegrass Institute’s one-stop public policy information shop.”

The Hill: “The Senate Budget Committee Chairman said Wednesday he’s willing to use special rules to force a final healthcare bill through with a simple majority vote . . . His comments lend weight to speculation that congressional Democratic leaders plan to have the House pass the Senate healthcare reform without changes, then pass a second bill with changes hashed out between the two chambers’ leaders and the White House . . . ”

Catholic League: “It is important to recognize that one of the issues which hurt Martha Coakley in Massachusetts was her adamant rejection of conscience rights: she effectively told Catholic doctors and nurses that they either perform abortions or look for another job. This didn’t go over big with Catholics, as well as with many others, in the Bay State.”

SCOTUS Blog: “If the Court is planning to issue the ruling in Citizens United v. Federal Election Commission (08-205) on Thursday, rather than waiting, say, until Monday, one possible reason is that one of the Justices who will be discussing an opinion from the bench plans to be absent on Monday.”

Religion Clause Blog: “Yesterday, the U.S. Supreme Court denied certiorari in Busch v. Marple Union School District, (Docket No. 09-315, 1/19/2010).”

Religion Clause Blog: “Currently under Britain’s Civil Partnership Act 2004, same-sex commitment ceremonies can only be conducted by civil registrars.”

Religion Clause Blog: “Last week, Britain’s Equality and Human Rights Commission opened its consultation on drafts of three guides under Britain’s Equality Bill.”

WWLTV.com: “He said the clinic was operating without a nurse on staff, without a site-specific Louisiana controlled dangerous substance license and without a U.S. Drug Enforcement Administration controlled substance registration.”

Miami Herald: “At Tuesday’s meeting, most commissioners voted to allow city employees’ domestic partners, whether straight or gay, to enjoy the same benefits and rights an employee’s spouse would get.”

Christian Today: “There is much that the church in Europe can learn from Middle East churches about how to live side by side with Muslims, the General Secretary of the Community of Protestant Churches in Europe has said.”

“‘It is my understanding that it will be put on the Order of the Day (agenda) Thursday and put it up for a vote on Friday,’ said Sen. Brian Taniguchi, chairman of the Judiciary Committee.”

The Hill: “Senate Democratic Whip Dick Durbin (D-Ill.) said leaders would not make any attempt to pass a final healthcare reform bill through the Senate before state Sen. Scott Brown (R) is certified the winner of the special election.”

Islington Gazette: “Civil servants Tom Freeman and Katherine Doyle, of North Road, Holloway, are to sue Islington Council after being turned down for a ‘gay marriage’ last November . . .  Now they are searching for another straight couple and two gay couples to back their stance as they prepare to take their case to the European Court of Human Rights in Strasbourg.”

Times of Malta: “The Opposition has called on the government to set up a committee – already provided for in the Criminal Code – to advise the minister responsible for culture on definitions of obscenities and pornography.”

AsiaNews.it: “Yesterday an armed group killed a 45 year-old businessman. It is the second murder in less than 24 hours. Witnesses said security forces were at the scene but did not intervene. AsiaNews sources: they blame al Qaeda, but Christians are victims ‘of the power struggle’ between Arabs and Kurds.”

The Christian Institute: “Three quarters of churchgoers say the risk of anti-Christian persecution in the UK is greater than five years ago and 80 per cent expect it to get worse, a new survey shows. And two thirds think there is more negative discrimination against Christians than any other faith group in the nation.”

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.”

“A controversial bill that will allow same-sex couples to enter into civil partnerships may finally reach the Legislature floor this week, but even the senator who introduced the bill isn’t confident it will pass.”

Wave 3 (NBC): “In a surprising move, the budget Gov. Steve Beshear presented to legislators includes spending money made from expanded gaming even though legislation has not been approved . . . The Family Foundation released a statement saying the Governor is ‘out of control.’ Kent Ostrander says Beshear is working for the gambling industry.”

Education Week (AP): “Gov. David Paterson and legislative leaders failed Tuesday to reach a compromise on expanding charter schools by a federal deadline, with millions of dollars in education funding at stake.”

David French, Director of the ADF Center for Academic Freedom, writing at Phi Beta Cons: “Yes, cases like Martinez are a ‘zero sum game’ . . . if the goal is to force private institutions to accept people who do not share the group’s belief . . . But there is a path where both sides win, where there is not a “zero sum,” and that path is to respect free association and free speech. If the Christian Legal Society succeeds in protecting the free-association right, then that right will also be enjoyed by groups like Hastings Outlaw (which, ironically enough, has intervened in the case to toss the Christian Legal Society from Campus).”

Morality in Media on the Christian Newswire: “Morality in Media president Robert Peters had the following comments: ‘It is no secret that GoDaddy.com loves to ‘push the envelope’ when it comes to the content of its ads; and it would appear that this year’s Super Bowl ads may push as close to the indecency line as CBS Network ‘censors’ will allow, which could be as close as CBS thinks it can get away with.’”

EWTN: “New Mexico’s bishops are opposing an effort by Gov. Bill Richardson, a Catholic, to create domestic partnerships for homosexual couples. ‘The bishops are instructed by Catholic teachings not to give any ground that would lead to same-sex marriage,’ said Allen Sanchez, executive director of the New Mexico Conference of Catholic Bishops.”

LifeNews: “The group behind the effort to get a parental notification measure on the Alaska ballot has submitted what it says are enough signatures to make that happen. The Alaskans for Parental Rights campaign says the campaign has met the major requirements set forth by the state Division of Elections.”

Pleasanton Weekly: “During cross-examination, Brian Raum, a lawyer for Proposition 8 sponsors, showed a 2008 campaign television advertisement that alleged that same-sex marriage advocates stole campaign signs, defaced a church and assaulted Proposition 8 donors.”

Christian Law Journal: “‘Christians shouldn’t be arrested and charged as criminals for expressing their beliefs on public property. They have the same First Amendment rights as anyone else in America,’ said Demetrios Stratis of Fair Lawn, a Alliance Defense Fund allied-attorney.”

HSLDA: “Families conducting a “multi-family homeschool” as defined in Delaware law find themselves squarely within the purview of this child welfare law if a parent is teaching children of others in the home and is being compensated for the instruction being provided.”

Traverse City Record-Eagle: “Appropriately recognizing our nation’s religious heritage and its diversity through invocations at public meetings is far from creating an unconstitutional entanglement. Secular or spiritual, it has long been recognized that public invocations serve to remind public officials of the solemn duty imposed by their offices, something worth inspiring . . . Steven Francis is an academic attorney, an adjunct professor of political science at Grand Valley State University, an allied attorney with the Alliance Defense Fund, and a Village of Elk Rapids trustee.”

San Francisco Chronicle: “In cross-examination, Brian Raum of the Alliance Defense Fund, a lawyer for Prop. 8′s sponsors, grilled Sanders about his assertion that he bore no ill will toward gays and lesbians during the years he opposed their right to marry. Isn’t it true, Raum asked, that many people ‘voted for Proposition 8 because they believed civil unions were a fair and reasonable alternative to marriage,’ the view Sanders formerly espoused? Weren’t there ‘sincere religious beliefs on both sides?’ Does a voter, Raum asked, have to be a bigot to favor the traditional concept of marriage?”

EducationNews.org: “President Obama will ask Congress for $1.35 billion in his 2011 budget proposal to extend an education grant program for states, although the Education Department remains months away from announcing its first round of awards, senior administration officials said.”

NCPA Daily Policy Digest: “Americans are ruggedly individualistic and savor competition, says the Swedish Wire. Our one-size-fits-all public education system leaves students in Dallas with less choice and opportunity than their counterparts in Stockholm. That needs to change, say Clayton M. McCleskey, a columnist with the Dallas Morning News. The Swedish model is built on a voucher system . . . ”

“The Index analyzes just how economically “free” a country is, and this year America saw a steep and significant decline, enough to make it drop altogether from the “free” category . . . ”

Pacific Justice Institute: “Lesbian, gay, bisexual and transgender (LGBT) activists are seeking to oust an elderly Prop. 8 supporter from a theater board whose eleven members must be approved by the City Council. The Oakland City Council is expected to vote tonight on the issue . . . ”

The Hill: “Senator-elect Scott Brown (R-Mass.) said he’s ready to take his seat ‘without delay.’”

Mats Tunehag writes at Varlden Idag: “The Labour government in the UK is pushing a bill through the Parliament which will be a major backlash for religious freedom. It is a state intervention in what churches should believe and how they should be organized.”

ADF attorney Austin R. Nimocks provides this update on yesterday’s proceedings in the Proposition 8 trial. He writes: “The themes weren’t all that different from those of last week—purely emotional appeals coupled with expert testimony (which was easily dismantled by the lawyers for ProtectMarriage.com). Yet, as I’m listening to all of the testimony, I keep asking myself this question: why are we having this debate here?”

Charisma Magazine: “The Alliance Defense Fund (ADF)—which in November filed a lawsuit against the elections board on behalf of members of the Stand4Marriage DC Coalition—is appealing the decision. They say the anti-discrimination laws in question were written in the 1970s, long before same-sex marriage was being debated nationally, and should not be used to prevent a referendum. ‘The people of D.C. have a right to vote on the definition of marriage, and the D.C. Charter guarantees that right,’ said ADF attorney Timothy J. Tracey.”

The AP reports that Errol Southers has withdrawn as TSA nominee. Republicans were concerned he would attempt to unionize the TSA.

Washington Post: A year into his presidency, President Obama faces a polarized nation and souring public assessments of his efforts to change Washington, according to a new Washington Post-ABC News poll.

“Obama’s former campaign manger, David Plouffe, added on ABC’s ‘Good Morning America’: ‘I’m very confident we can pass health-care reform.’”

Anita S. Krishnakumar, The Hidden Legacy of Holy Trinity Church: The Unique National Institution Canon (January 19, 2009). William & Mary Law Review, Vol. 51, 2009; St. John’s Legal Studies Research Paper No. 08-0142. Available at SSRN: http://ssrn.com/abstract=1213123

“This Article explores an under-appreciated legacy of the Supreme Court’s (in)famous decision in Holy Trinity Church v. United States. While Holy Trinity has been much-discussed in the academic literature and in judicial opinions, the discussion thus far has focused almost exclusively on the first half of the Court’s opinion, which declares that the ‘spirit’ of a statute should trump its ‘letter’ and relies on legislative history to help divine that spirit. Scholars and jurists have paid little, if any, attention to the opinion’s second half. In that lengthy second half, the Court tells a detailed narrative about the country’s historically Christian roots and explains that, other interpretive rules aside, the statute simply cannot be construed against the church-because the United States ‘is a Christian nation.’”

I Object: The RLUIPA as a Model for Protecting the Conscience Rights of Religious Objectors to Same-Sex Relationships
Erin N. East, 59 Emory L.J. 259 (2009)

“This Comment examines the shortcomings of the United States Supreme Court’s current free exercise jurisprudence as well as current broad-based statutes like the Religious Freedom Restoration Act (RFRA) in protecting religious objectors in the context of same-sex rights. It then proposes a number of possible ways to protect religious objectors, concluding that while state statute-specific exemptions would be a more direct, and perhaps preferred, method of protecting religious objectors, the absence of state solutions and the need to implement a uniform approach to rights of conscience suggest a federal approach. A statute modeled on the Religious Land Use and Institutionalized Persons Act, (RLUIPA) would provide a more comprehensive and balanced approach than the funding legislation that has typically been used by Congress to protect other types of conscience rights. By providing some protection for religious individuals, such a federal conscience statute could lessen the tension between advocates for gay rights and advocates for religious liberty. While this Comment focuses explicitly on certain classes of religious objectors in the context of same-sex rights, the proposed solution could include provisions covering any class of religious objectors.”

Same-Sex Relationships and the Full Faith and Credit Clause: Reducing America to the Lowest Common Denominator
Rena M. Lindevaldsen, 16 Wm. & Mary J. Women & L. 29 (2009)

“This Article examines the legal and policy implications that arise when a state that expressly prohibits recognition or enforcement of any rights arising from a same-sex relationship is confronted with a request to register and enforce a child custody order issued by another state that gives custody or visitation rights to a biological mother’s former same-sex partner. As more states confer marital rights to same-sex couples, this issue will occur with increasing frequency.”

Vivek S. Sankaran, Parens Patriae Run Amuck: The Child Welfare System’s Disregard for the Constitutional Rights of Non-Offending Parents (October 31, 2008). Temple Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1292771

“Yet, despite these advances, juvenile courts continue to disregard the constitutional rights of nonoffending parents, individuals against whom the state has made no allegations. Nearly every state permits juvenile courts to deprive nonoffending parents of rights to their children based solely on findings or admissions of child maltreatment by the other parent. Such actions not only raise many constitutional questions, but also jeopardize children’s safety and well-being by increasing the likelihood that they will unnecessarily enter foster care and that their parents will disengage with the process. This Article proposes a policy solution that reflects the correct balance between safeguarding the constitutional rights of the nonoffending parent and preserving the flexibility of juvenile court judges to issue orders ensuring that the child’s needs are met.”

Death With Dignity’s Emerging Conceit: Could Vacco v. Quill Be Losing Its Appeal?
Arthur G. Svenson, 31 U. La Verne L. Rev. 45 (2009)

“The holding of one Montana judge, who discovered a fundamental right to PAD within enumerated state rights to privacy and dignity, is unlikely to have a parroting effect upon non-Montanan state judges reviewing the constitutional implications of death with dignity issues. After all, Montana’s is only one of five state constitutions that contain substantive enumerations of privacy rights, and for three of those that do, California, Florida, and Alaska, judges have already considered and denied pleadings that state privacy rights shield actions of patients and willing physicians from criminal prosecution for actions amounting to assisted suicide. For the Justices of the Supreme Court, the absence of a ‘careful description of [an] asserted fundamental liberty interest’ in the Bill of Rights that even remotely resembled PAD proved pivotal in convincing them to decline Glucksberg’s invitation to create such a right on their own. Given that reasoning, then, one could quite plausibly imagine that most judges in most states confronting similar state challenges on cognate state constitutional grounds would unhesitatingly follow the High Court’s lead and choose to defer to the prevailing forces at play in the political arena.”

Rethinking the Use of Foreign Law and Public Consensus: The U.S. Supreme Court’s Inconsistent Methods for Defining Constitutional Rights
Luke Nikas, 13 Lewis & Clark L. Rev. 1007 (2009)

“The debate over the Supreme Court’s citation of foreign law rages on. Does the Court have a constitutional license to consider foreign law? Does foreign law differ too much from our own to be of any value? Discussions of questions like these fill confirmation hearings, law reviews, and pages of the U.S. Reports. But a key piece of the debate is missing. This Article connects the use of foreign law with the ways in which the Supreme Court has used a domestic consensus to define constitutional rights. It argues that the decision to consider foreign law, or not, raises substantially the same moral-philosophical problems as the Court’s use of a domestic consensus. These philosophical problems are particularly pronounced because the Supreme Court’s doctrinal methods for defining constitutional rights rely upon consensus in inconsistent ways, all of which conflict with moral-philosophical theories about the source and meaning of our rights. The Article concludes by arguing that the Court has failed to justify its consensus-related jurisprudence and, in turn, has failed to explain how our rights come to fruition and what they actually mean.”