Daily Archives: March 17, 2010

WSLS.com: “The ACLU plans to sue the commonwealth if Governor Bob McDonnell vetoes a bill allowing a pro-choice license plate. The General Assembly approved the ‘Trust Women. Respect Choice.‘ plate, with proceeds going to Planned Parenthood.”

The Underground: “In November 2009, city officials in Gilbert, Arizona sent a ‘cease and desist’ order to a pastor and his wife holding small group Bible studies in their home . . . This month, attorneys from the Alliance Defense Fund (ADF) filed an appeal on behalf of the church group . . . The Oasis of Truth Church Web site now states that the City of Gilbert’s Mayor and City Manager recently attended a Sunday service, apologized and hope to revise the code soon.”

The Chronicle of Higher Education: “A federal court has rejected a claim that the University of North Carolina at Wilmington committed viewpoint discrimination against Michael S. Adams, a prominent conservative commentator and associate professor of criminology, by denying him a promotion based partly on its review of online columns and other expressions of opinion that he included in his application to move up the ranks . . . ‘We disagree with the court’s assessment that Dr. Adams’s speech is somehow not protected by the Constitution,’ Jordan Lorence, a senior counsel for the alliance, said in the statement. ‘Opinion columns are classic examples of free speech protected by the First Amendment, and mentioning them in a promotion application does not change this fact.’”

LifeSiteNews: “The Oklahoma Court of Civil Appeals has upheld the dismissal of a lawsuit that sought a ‘divorce’ between two women who claimed to have obtained a marriage license in Canada . . . ‘The government cannot issue a divorce for a “marriage” it doesn’t recognize,’ said ADF Senior Legal Counsel Austin R. Nimocks. ‘The people of Oklahoma have made it clear that marriage in their state is only between one man and one woman. The court’s decision was not only the right decision, but it was truly the only decision the court could legitimately make under the circumstances.’”

Washington Post: “A spokesman for Virginia Attorney General Ken Cuccinelli II (R) said this afternoon that Virginia will file suit against the federal government if the Democratic health care reform bill is approved by the U.S. Congress . . . ”

Google News (AP): “Idaho Gov. C.L. “Butch” Otter on Wednesday became the first state chief executive to sign a measure requiring his attorney general to sue Congress if it passes health reforms that force residents to buy insurance. Similar legislation is pending in 37 other states nationwide.”

Seeing Red AZ: “WorldNetDaily carries the shocking report about the East Valley city of Gilbert, Arizona ordering a group of seven adults to stop gathering for Bible studies in a private home because such meetings are forbidden by the city’s zoning codes . . . The ban, however, prompted a response from the Scottsdale-based Alliance Defense Fund, which filed an appeal with the city as the first step in its campaign to overturn a provision it describes as illegal.”

Reuters: “A group called Fight Back New York, created with money from software entrepreneur and openly gay philanthropist Tim Gill, is pledging to spend hundreds of thousands of dollars to get pro-gay marriage candidates elected to the state Senate in November’s elections. Advocates aim to bring the issue of same-sex marriage to the Senate floor as early as next year. The legislature voted three months ago to reject a similar bill.”

Christian Post: “As the Federal Communications Commission seeks out more broadband space, the agency is being asked to consider possibly the largest group that would be affected by the move – that is, churches. Churches across the country that use wireless devices have already been affected by FCC’s 2008 decision to auction off rights to the 700 MHz band. But their new push for even more spectrum is sure to create more losses and interferences.”

WORLDmag: “Today the Episcopal Church announced that it will consecrate its second non-celibate gay bishop this May. Mary Glasspool was elected bishop on December 5 but was waiting for a majority of the diocesan bishops and ‘standing committees’ in the jurisdiction to approve her consecration.”

Telegraph: “Norrie May-Welby, 48, was born a man but had a sex change operation in 1990, at the age of 28. After becoming unhappy as a woman, May-Welby decided to become a ‘neuter’. The 48-year-old is now officially recognised as a person of no specific gender.”

‘What’s ironic about this case is the district attorney got penalized for being too nice . . ‘

Urgente24: “Members of the RCU, the Frente para la Victoria, socialism, the Civic Coalition and [center party are pushing] a bill [that will legalize abortion in some cases] in the Republic Argentina. The initiative launched by 33 legislators argued that ‘every woman has the right to decide on abortion during the first twelve weeks of [the] gestational process. Outside this period, [abortion will] be permitted in cases of rape, or if [the health and lives of women are at risk], or if there are serious fetal malformations . . . Then, in another press conference, Representative Diana Conti with members of the Comunidad Homosexual Argentina refloated the [proposed legislation by] which our country could become the first in Latin America [to approve of the marriage between people of the same sex]. In the House there are two initiatives that enable the marriage between same sex. One initiative is part of the socialist deputy (MC), Silvia Augsburger, and the other is led by Representative Vilma Ibarra, Popular and Social Encounter.” [Modified Google Translation]

My Fox Phoenix: “The Arizona State Senate is set to hear a bill on Wednesday that would give married couples priority when it comes to adoptions . . . ”

Arizona Marital Preference for Adoption up for vote

HB 2148

Knoxville News Sentinel: “This storm of prayer had been gathering for weeks, since Americans United for the Separation of Church and State sent a mid-February letter telling Waters to end the decades-long tradition of saying the Our Father before meetings. Waters said he intended to continue to pray, and Monday night he fulfilled that promise as the familiar words of the familiar prayer rolled through the courthouse.”

Politico: “Minnesota Rep. James Oberstar, an ardent backer of the House abortion restrictions, will vote for the final package after a further review of the Senate’s language, giving top Democrats a critical endorsement as they lean on their rank-and-file to back the Senate bill.”

Congratulations to allied attorneys Tim Belz, Sharon Blakeney, Jim Bopp, John Carpay, Steve Fitschen and Pete Lepiscopo, Cathi Herrod, Jerald Jones and Joel Pierce, Jim Kelly, Michael Tierney, and Randy Wenger for their recent successes listed below. Please take time to congratulate them!

C-SPAN Video Library: “The Video Library offers 160,000 hours of political events covered by the C‑SPAN Networks since 1987. C-SPAN records, indexes, and archives all C-SPAN programming for historical, educational, research, and archival uses by individuals. Programs are accessible to view through this online database.”

AP on MyWay: “As the state continues to receive e-mails seeking Obama’s birth certificate, the state House Judiciary Committee heard a bill Tuesday permitting government officials to ignore people who won’t give up.”

LifeSiteNews: “A bill has been introduced to the House of Representatives that would set in stone guidelines developed for the National Institute of Health’s embryo-destructive stem cell research. Pro-life sources on Capitol Hill warn, however, that the bill’s wording goes farther than the NIH guidelines . . . The ‘Stem Cell Research Advancement Act,’ HR 4808 . . . ”

Andrew Nagorski writes at Newsweek: “. . . this time, the anxiety seems like more than a feeling. It is more deeply rooted in concerns about long-term trends, and warning lights are flashing in several places. It’s harder now to shrug off the America-in-decline theories than ever before.”

“Attorneys with the Alliance Defense Fund have secured a favorable settlement with the West Shore School District on behalf of a middle school student who was ordered to remove a T-shirt donning the message ‘Abortion is not Healthcare.’”

LifeSiteNews: “. . . Panned Parenthood said. ‘An abortion requires an operation. It kills the life of a baby after it has begun . . . It is dangerous to your life and health. It may make you sterile so that when you want a child you cannot have it. Birth control merely postpones the beginning of life.’”

LifeNews: “The poll finds 46.3% of primary care physicians (family medicine and internal medicine) feel that the passing of a public option will either force them out of medicine or make them want to leave medicine . . . The Medicus Firm, a leading physician search and consulting firm based in Atlanta and Dallas, conducted the survey.”

USCourts.gov: “The Judicial Conference of the United States today approved key steps to improve public access to federal courts by increasing the availability of court opinions and expanding the services and reducing the costs for many users of the Public Access to Electronic Court Records (PACER) system. At its biannual meeting in Washington, D.C., the Conference voted to . . . ”

BallotPedia has issued this update with links to various ballot initatives.”

Lawrence Journal-World: “A proposal to establish ‘convenant marriage’ in Kansas was stripped out of a bill on Wednesday by a majority on the Senate Judiciary Committee.”

House Bill 2667

Associated Press: “Goodwin Liu, 39, is an unabashed liberal legal scholar who, if confirmed, could become a force on the federal appeals court for decades. There’s talk that in time, the Rhodes Scholar, former high court clerk and current assistant dean and law professor at the University of California, Berkeley, could be the first person of Asian descent chosen for the Supreme Court.”

Religion Clause Blog: “All of the amicus briefs, as well as the briefs of the parties, have now been filed with the U.S. Supreme Court in Christian Legal Society Chapter v. Martinez. The full text of all the briefs are available online from the ABA’s website: 22 amicus briefs support Petitioner; 12 support Respondent; and one is in support of neither party . . . ”

Religion Clause Blog: “In Alcazar v. Corporation of the Catholic Archbishop of Seattle, (9th Cir., March 16, 2010), the U.S. 9th Circuit Court of Appeals dismissed under the ‘ministerial exception’ doctrine claims by two Catholic seminarians who alleged violations of Washington state’s Minimum Wage Law . . . ”

FOX News: “A controversial ban on holding church meetings in private homes in a rapidly-growing town in Arizona could be rescinded as early as next week, officials say. Gilbert, Ariz., Mayor John Lewis said members of the city’s Town Council have asked town officials to stop enforcing the ban until permanent changes can be made at a March 22 meeting — or possibly earlier. ‘Christian church groups shouldn’t be singled out for discrimination and banned from meeting in their own homes,’ ADF attorney Daniel Blomberg said in a statement issued last week.”

Daily Mail: “A Catholic charity won a High Court battle today over adoption laws that would have forced it to consider gay couples as parents. Catholic Care, a registered adoption agency, wants special dispensation from sexual orientation regulations which forbid it from giving children solely to heterosexual couples . . . ”

The Church Report: “The Oklahoma Court of Civil Appeals has upheld the dismissal of a lawsuit that sought a ‘divorce’ between two women who claimed to have obtained a marriage license in Canada . . . ‘The government cannot issue a divorce for a “marriage” it doesn’t recognize,’ said ADF Senior Legal Counsel Austin R. Nimocks. ‘The people of Oklahoma have made it clear that marriage in their state is only between one man and one woman. The court’s decision was not only the right decision, but it was truly the only decision the court could legitimately make under the circumstances.’”

Georgene Rice summarized developments surrounding Gilbert, Arizona’s suppression of home Bible Studies.

The MP3 runs approximately 6 minutes.

Related ADF Media and recent statements from Gilbert’s leadership:  “Gilbert remains committed to religious freedom”

AP: “Church leaders say they have met in this fiercely conservative southern African nation to ‘understand the phenomenon’ of same sex partners days ahead of a court verdict that could send two gay men to jail for up to 14 years . . .”

Citizen Link: “Developers are circling as the Delaware General Assembly considers adding one or more casinos to the state.”

AP: “An American infertility clinic seeking business in Britain has prompted fierce criticism by offering free eggs from a U.S. woman to one participant in a promotional seminar Wednesday evening in London.”

Google News (AP): “Some 60 leaders of religious orders representing 59,000 Catholic nuns Wednesday sent lawmakers a letter urging them to pass the Senate health care bill.”

USCCB: “The bishops, however, judge that the flaws are so fundamental that they vitiate the good that the bill intends to promote. Assurances that the moral objections to the legislation can be met only after the bill is passed seem a little like asking us, in Midwestern parlance, to buy a pig in a poke.”

LifeNews: “A national survey of Planned Parenthood abortion centers finds a higher number are giving women the dangerous RU 486 abortion drug that has killed at least 13 women worldwide and injured more than 1,100 in the U.S. alone.”

Arab News: “On Wednesday, the Pennsylvania chapter of the Council on American-Islamic Relations (CAIR-PA) will hold a news conference in Philadelphia to announce the launch of a nationwide campaign to challenge anti-Islam bias in a series of children’s books that the Washington-based Muslim civil rights group says promote “hostility toward Islam and suspicion of Muslims.”

Washington Post: “The D.C. voucher program’s future appeared limited Tuesday after the Senate voted down a measure that would have reopened the initiative to new students.”

Rabbi Daniel Lapin writes in his Daily Thought Tools: “Movie screens suggest that sex is public and everyone’s business. However, just try criticizing sexual misbehavior and you will be quickly told that sex is private and none of your business. So, which is it? It’s actually neither, or maybe we should say both. Sex should be private but it is everybody’s business . . . ”

9WSYR: “The City of Cortland is trying to tighten up its laws regarding adult entertainment businesses.”

The Tennessean: “Three Metro Council members are pressing the city’s human rights agency to investigate private companies accused of discriminating against workers based on gender identity.”

FOX 31: “Howard Brown with Planning and Development says the City approved merging an ordinance from the City Code, and one from the Zoning Ordinance that will be called the ‘Sexually Oriented Business Ordinance.’ However, they can only regulate where the businesses are located, not so much what they sell.”

WHAS11: “A teenage girl standing up to pray at a Louisville middle school has been suspended. Her principal calls it a disruptive and potentially dangerous. [Principal Rob] Stephenson, who carries a cross in his pocket, says the problem wasn’t Aly praying. ‘She can’t put herself in a dangerous situation. She can’t stand up on the cafeteria benches,’ said Stephenson.”

InjuryBoard.com: “An unlikely ally has joined the fight to overturn two recent Supreme Court decisions – Bell Atlantic v. Twombly and Ashcroft v. Iqbal – which made it much harder for plaintiffs to file claims in civil disputes. Legal Times and Wall Street Journal blog posts today note that the conservative Alliance Defense Fund has penned a letter to lawmakers supporting legislation to overturn the decisions to restore the pleading standard and Americans’ basic legal protections.”

LA Times: “Lesbian, gay, bisexual and transgender senior citizens face myriad social and financial problems, and lawmakers could help them by altering Social Security and Medicaid rules, according to a national report being released Wednesday. The report, prepared by Services and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders, or SAGE, has been endorsed by major mainstream aging groups, including AARP and the American Society on Aging.”

KHON: “A human trafficking bill is back in the Legislature again for the fifth time – with victims and their families wanting forced prostitution defined as a Class A felony with steep mandatory sentencing.”

Pacific Justice Institute: “A city in Southern California is demanding that a small home Bible study group stop meeting because it does not have an expensive permit. The permit is not required for similar-sized gatherings in homes, such as book clubs, birthday parties or gatherings centered around sporting events.”

The Hill: “The Ohio lawmaker and perennial left-wing presidential candidate made the announcement at a Wednesday morning press conference two days after President Barack Obama personally lobbied him to switch his vote during a flight to Ohio on Air Force One.”

The Ledger: “Polk County School Board members decided Tuesday to ask various religious leaders to open their meetings with prayer.”

“. . . Jesse Panuccio, a lawyer for Proposition 8 supporters, told Walker that it was only reasonable to require opponents of the ban to abide by the same disclosure requirements as supporters.”

LifeNews: “A new Wall St. Journal poll finds opposition to the pro-abortion Senate health care bill at its highest levels yet, but a top Democrat misrepresented the poll.”

The State Action Doctrine and the Establishment Clause
123 Harv. L. Rev. 1278 (2010)

“Of course, the state action doctrine does not answer all Establishment Clause questions–in particular, it does not help identify whether an activity is religious in nature. This Part argues, however, that when the sectarian nature of constitutionally questioned activity is determined, the state action doctrine furnishes courts with a clearer and more coherent legal framework for evaluating Establishment Clause cases than does automatic application of the Lemon test. Section A provides a theoretical justification for the application of the state action doctrine to Establishment Clause jurisprudence, and the following sections examine Cooper, Americans United, and Community House–three cases that demonstrate why and how the state action doctrine should be applied.”

What’s the Cost of Living in Oregon These Days? A Fresh Look at the Need for Judicial Protections in the Death With Dignity Act
Andrew R. Page, 22 Regent U. L. Rev. 233 (2010)

“With the rise of the largest senior citizen population in our nation’s history on the horizon, as well as the increased cost of health care for both state and private industries, a judicial review process to oversee the Death with Dignity Act is essential to protect senior citizens against its potential abuses. In order to show the purpose and process of adjudicating Death with Dignity Act procedures, this Note unfolds in four parts. Part I explains the circumstances, both present and future, creating the potential for improper use of the Death with Dignity Act. Part II explains why the Death with Dignity Act, as presently written, does not provide adequate safeguards to protect citizens in light of those circumstances. Part III proposes an adjudicative procedure that a state may enact in order to provide sufficient protection for its citizens. Finally, Part IV provides the method for adjudicating Death with Dignity Act cases by using the example of the judicial bypass procedure for minors seeking an abortion. With a process of judicial review as a check on the procedures of the Death with Dignity Act, a state can confidently ensure the protection of patients, as well as the integrity of health care providers.”

Restoring the Lost Virtue of Prudential Justice to the Life Debate
Lynne Marie Kohm, 22 Regent U. L. Rev. 191 (2009-2010)

“Review of Politics for the Greatest Good: the Case for Prudence in The Public Square. By Clarke D. Forsythe. Politics for the Greatest Good suggests how the prolife community can reconsider a strategy for the greatest good with a solid foundation cemented in the lost art of prudence. According to Forsythe, recovering prudence as a pivotal virtue of the movement is absolutely necessary. Unlike brash, harsh, hateful, and potentially dangerous politics of current events, Forsythe proffers something completely new–the use of prudence in politics. The radical left and the radical right may have defined the terms of the debate in the most critical issues of our times, but Forsythe claims that they have not been effective. This book gently throws down the gauntlet to the prolife community, asking it to employ wisdom, speak with discretion, and work toward progress for the sake of the common good–both present and future.”

Pro [Whose] Choice: How the Growing Recognition of a Fetus’ Right to Life Takes the Constitutionality Out of Roe
Rachel Warren, 13 Chap. L. Rev. 221 (2009)

“This Comment will argue that recent trends in legislation and modern scientific development call for the fulfillment of Roe’s own acknowledgement that the right to life will ‘collapse’ the right to an abortion. Part I lays out the history of abortion jurisprudence, from the cases predating Roe, the Roe decision itself, and finally the cases following Roe. Part II establishes the widespread acceptance of fetal humanity and rights in both science and law, as well as the likelihood that abortion jurisprudence is ripe for upheaval. Part III then calls attention to the unavoidable competing interests of mother and child which the Court must address, as well as preliminary solutions anticipated by others. Part IV concludes that, when weighing these conflicting interests, the right to life must prevail over the right to an abortion.”

Specialty License Plates and the First Amendment
123 Harv. L. Rev. 1291 (2010)

“The law of specialty license plates is a central battleground in the still-unfolding jurisprudence of government speech. Undoubtedly, license plates implicate the expressive rights of the drivers who display them, but because their messages are so readily attributed to the issuing governments, they also implicate a government speech interest in avoiding inaccurate assumptions of state endorsement. Accordingly, specialty license plates constitute a hybrid speech category–a classification as yet unrecognized by the Supreme Court–in which both private and government speech interests are weighty enough to demand simultaneous recognition by courts. In this hybrid category, both the government and the private speaker should have a right to veto expression that would be attributed to them by reasonable observers, as the test for government speech recently suggested by Justice Souter implies.”

Jelani Jefferson Exum, Making the Punishment Fit the (Computer) Crime: Rebooting Notions of Possession for the Federal Sentencing of Child Pornography Offenses (February 5, 2010). Richmond Journal of Law and Technology, 2010. Available at SSRN: http://ssrn.com/abstract=1568352

“This Article adds to the current, heated discussion on what is happening in the sentencing of federal child pornography possession offenses, why nobody is satisfied, and how much the Federal Sentencing Guidelines are to blame. At the heart of this Article are the forgotten players in the discussion – the computer and the internet – and their role in changing the realities of child pornography possession. This Article argues that the computer and internet are important factors in understanding both the victimization of the children portrayed in the illegal images and the formulation of appropriate punishment for those who view and possess such images.”

Brian Leiter, The Radicalism of Legal Positivism (March 10, 2010). Guild Practitioner, 2010. Available at SSRN: http://ssrn.com/abstract=1568333

“‘Legal positivism’ is often caricatured by its jurisprudential opponents, as well as by lawyers and legal scholars not immediately interested in jurisprudential inquiry. ‘Positivist’ too often functions now as an ‘epithet’ in legal discourse, equated (wrongly) with ‘formalism,’ the view that judges must apply the law ‘as written,’ regardless of the consequences. Lon Fuller, Ronald Dworkin, and the Critical Legal Studies writers have all contributed in different ways to the sense that “positivism” is either a political conservative or politically sterile position. This essay revisits the actual theory of law developed by positivist philosophers like Bentham, Hart, and Raz, emphasizing why it is, and was, understood by its proponents, to be a radical theory of law, one unfriendly to the status quo and anyone, judge or citizen, who thinks obedience to the law is paramount. To be clear, the leading theorists of legal positivism thought the theory gave the correct account of the nature of law as a social institution; they did not endorse it because of the political conclusions it entailed, and which they supported. Yet these theorists realized that the correct account of the nature of law had radical implications for conventional wisdom about law. We would do well to recapture their wisdom today.”

Louis D. Bilionis, On the Significance of Constitutional Spirit (March 15, 2010). North Carolina Law Review, Vol. 70, p. 1803, 1992; U of Cincinnati Public Law Research Paper No. 10-10. Available at SSRN: http://ssrn.com/abstract=1568322

“America is experiencing a major realignment of the national constitutional order. The primary responsibility for defining and enforcing civil liberties is shifting from the federal courts and the Federal Constitution to the state judiciaries and their state constitutions. Judges who expound a state constitution must do so with devotion to its spirit – not the spirit of the Federal Constitution, and not the spirit that underlies the currently popular constitutional theory. In many states, North Carolina Among them, keeping faith with the constitutional spirit means interpreting individual rights liberally and enforcing them unflinchingly.”

Alec Stone Sweet, On the Constitutionalisation of the Convention: The European Court of Human Rights as a Constitutional Court (March, 12 2010). Revue Trimestrielle des Droits de l’Homme, Vol. 80, pp. 923-44, 2009. Available at SSRN: http://ssrn.com/abstract=1569359

“In this essay, I seek to make the best argument for the claim that the European Court of Human Rights is a constitutional court. The scope of the Court’s authority is comparable to that of national constitutional and supreme courts; and it is, today well positioned to exercise decisive influence on the development of a rights-based, pan-European constitutionalism. Further, judges in Strasbourg confront the same kinds of problems that their counterparts on national constitutional courts do; and they use similar techniques and methodologies to address these problems. Finally, I will argue that the European Convention of Human Rights [ECHR] has been constitutionalised by the combined effects of the entry into force of Protocol No. 11, and the incorporation of the Convention into national legal orders. Today, the Court’s basic constitutional task – its existential problem – is to manage the complex system of constitutional pluralism that has emerged. At the same time, the constitutionalisation of the Convention exacerbates the pluralism that already exists in many national legal orders. Far from being an oxymoron, “constitutional pluralism” describes a normal state of affairs in Europe.”

“A federal judge ruled Monday that nationally syndicated opinion columns written by a criminology professor at the University of North Carolina-Wilmington are not protected by the First Amendment because he referred to them on a promotion application.”