Daily Archives: May 11, 2010

LifeSiteNews: “The deluge of pro-life legislation in Oklahoma has continued after the state Senate on Tuesday voted to pass a controversial abortion reporting law, and sent it on to the governor’s desk. The Senate voted 32-11 to approve House Bill 3284, known as the ‘Statistical Abortion Reporting Act,’ which had already been approved by the House in an overwhelming 88-8 vote.”

IBT Health: “The Department for Child Protection – under the new radical government policy – will ‘seize’ babies from ‘unfit’ mothers before they are even born. The new policy works by forcing mothers-to-be who are 20-weeks-or-more pregnant to give urine samples, to show they are free from drugs, and also provide proof they have permanent place of residence.”

Hadley Arkes writes at the Catholic Thing: “Now if the argument is made these days that illegal aliens in America have a right to become citizens, it should be clear that this right cannot be one that comes to them through citizenship, because clearly they are not citizens. The demonstrators must be invoking a body of rights that are not simply posited or created locally, in America. They must be pointing to a body of rights that could be invoked by any human in any country. In other words, they must be backing into some notion of ‘natural right’ or – gasp – natural law.”

Peter Sprigg writes at the Washington Times: “The House of Representatives may act soon on a bill to marginalize and stigmatize Americans who disapprove of homosexual conduct. H.R. 3017, known as ENDA, seeks to give homosexuals (and the government) the right to sue employers, based on the theory that being gay is like being black (even though homosexuality is a matter of conduct, not race), female (even though homosexuals were never denied the right to vote), or religious (even though sexual preferences are not in the Constitution) . . . ”

ADF Attorney David Hacker writing at speakupmovement.org/university: “In the May 7th edition of the Chronicle of Higher Education, the ProfHacker section (no relation) asks for input on how to handle students “who display offensive/insensitive slogans on their clothes.” I thought I would offer my two cents . . . The answer should be simple: nothing. Yet, the article typifies current thinking on today’s public university campus–”we must create a utopia where no one gets their feelings hurt.” This thinking led to the creation of speech codes in the 1980s and has resulted in the censorship of countless students since.”

Washington Times: “Two weeks after the Supreme Court said it could stay, the Mojave Cross war memorial has been ripped out of and stolen from its rocky embankment in the California desert . . . ‘What our opponents can’t accomplish through the courts, they’ll accomplish through criminal vandalism,’ said [Joe Infranco], senior counsel at the Alliance Defense Fund, which filed a brief on behalf of the memorial. ‘These are intolerant cowards.’”

Associated Press: “Several other states [besides Idaho] also put strict limits on the number of new charter schools. Another 11 states don’t allow charters at all, even though the federal government has created a $4.35 billion competition to encourage charters and other educational innovations.”

The Christian Institute: “Pagan police officers can now demand holiday to celebrate Pagan festivals, after the Home Office gave its official backing to a Pagan police support group yesterday.”

DutchNews.nl: “The scrapping of a legal provision allowing religious schools to refuse to employ homosexual teachers should be part of discussions on forming a new government, the Telegraaf reports on Tuesday.”

Tulsa World: “Gov. Brad Henry has signed a measure allowing schools to offer elective courses on the Bible, his office said Tuesday. [House Bill 2321], by Rep. Todd Russ, R-Cordell, and Sen. Tom Ivester, D-Elk City, becomes effective Nov. 1.”

Christian Post: “The officially atheist Chinese government on Monday requested religious groups and people of faith to help with the rebuilding efforts in a northwest province devastated by a massive earthquake.”

Minivan News: “The new regulations under the Religious Unity Act of 1994 drafted by the Islamic Ministry contain ‘ambiguities’ and provisions that could be in conflict with the government’s stated policies, said the President’s Press Secretary, Mohamed Zuhair. The President of the Human Rights Commission of Maldives, religious scholars, people from the entertainment industry and NGOs have expressed concern with the regulations, he said.”

Forbes (AP): “French lawmakers unanimously passed a resolution on Tuesday asserting that face-covering Muslim veils are contrary to the principles of liberty, equality and fraternity on which France is founded. The non-binding resolution, passed 434 to 0, lays the groundwork for a planned law forbidding face-covering veils in public, including in the streets.”

BBC: “Mr Brown has officially tendered his resignation to the Queen at Buckingham Palace, and recommended Conservative leader David Cameron succeed him.” | Full resignation statement

Raw Story: “Elena Kagan, President Barack Obama’s latest nominee to the Supreme Court, helped protect the Saudi royal family from lawsuits that sought to hold al Qaeda financiers responsible in the wake of the Sept. 11, 2001 attacks . . . Specter, who has since become a Democrat, was unusually blunt. ‘She wants to coddle the Saudis,’ he said . . . ”

MSNBC: “But one rule-of-thumb formula puts potential US exposure at $54 billion should the entire IMF loan fund be tapped. And that doesn’t count the added exposure created by the Federal Reserve’s decision over the weekend to participate in currency swaps to provide liquidity to jittery European banks . . . ”

S. Michael Craven writes the Christian Post: “What concerns me most is that the idea of self-sacrificial duty – not just in military service but also in any meaningful way – is disappearing in our culture.”

“Rhode Island’s teen pregnancy rate is identical to West Virginia’s, but West Virginia’s teen birth rate is 33 percent higher.”

ACLU: “A federal court ruled late Monday that the U.S. Treasury Department’s freezing of a charity’s assets was unconstitutional and that in order to comply with the Constitution, Congress must fix the law to require a warrant be obtained based upon probable cause before taking such action. The court also found that the Treasury Department’s failure to give the charity notice of the basis for freezing its assets violated the Constitution by preventing the charity from being able to meaningfully respond to the freeze.” (The press release links to the ruling).

Quoting another blog, Eugene Volokh writes at the Volokh Conspiracy: “The first time ’round, back in 1999, a ‘substantial majority’ of the ABA found Kagan ‘qualified,’ and a minority found her ‘well qualified.’ Very good, but not the kind of unanimous ‘well qualified’ verdict one might look for.”

CNSNews: “Solicitor General Elena Kagan, nominated by President Obama to replace retiring Supreme Court Justice John Paul Stevens, has called the military’s ban on homosexuals ‘a profound wrong’ and ‘a moral injustice of the first order.’”

Daniel Foster writing at NRO | The Corner: “Under the tutelage of Sean Wilentz — lefty historian, friend of the Clintons, and notorious Bush-basher — Kagan wrote a thesis called ‘To the Final Conflict: Socialism in New York City, 1900–1933,’ . . . ‘Americans are more likely to speak of a golden past than of a golden future, of capitalism’s glories than of socialism’s greatness,’ she wrote in her thesis. ‘Conformity overrides dissent; the desire to conserve has overwhelmed the urge to alter. Such a state of affairs cries out for explanation.’” | New York Times | Media Matters disputes conservative coverage of Kagan’s thesis. | WorldNetDaily: Obama’s Supreme pick has love affair with socialism

John Carpay writes at the Canadian Constitution Foundation: “At the University of Calgary, setting up a pro-life display on campus can end your academic career. Last week, vice-provost Meghan Houghton found eight students guilty of a ‘major violation’ of rules governing ‘non-academic misconduct’ — a category that also includes theft, vandalism, arson, violence and sexual assault. Of course, the U of C is being careful about how it is framing its case, using the canard of campus security as a pretext for censorship . . . ”

The Alliance Defense Fund–jointly involved in a project with the American Legion and the American Legion Department of California to defend veterans’ memorials across the country–is strongly condemning the theft of the Mojave Cross veterans’ memorial from the California desert.

Google News (AP): “Army Secretary John McHugh said Friday the military is considering a system for soldiers to anonymously express their opinions about its ‘don’t ask, don’t tell’ policy on gay troops.”

Roll Call: “A repeal of the ‘don’t ask, don’t tell’ law banning openly gay people from serving in the military and the Employment Non-Discrimination Act could be on the floor this month, according to senior Democratic aides and lawmakers.”

Freedom from Religion Foundation: “Representatives of more than a dozen secular and humanist groups, including the Freedom From Religion Foundation, have signed a joint letter to the U.S. Census Bureau after getting complaints from people about being asked to take a religious employment oath that ends in ‘so help me God.’”

BBC: “A close ally of Gordon Brown has suggested to the BBC that Labour are close to conceding defeat in their efforts to do a deal to stay in power.”

Washington Post: “Jim DeMint is becoming something of a tea party hero, even a potential conservative kingmaker, a status that is not making the freshman senator many friends among fellow Republicans in Congress . . . His efforts, highly unusual for a freshman, have upset senators on Capitol Hill, where he’s viewed by many as an ideologue willing to purge centrist veterans . . .”

Christian Post: “When asked what’s important in life, most American ‘Millennials’ – those born between 1980 and 1991 – say family comes first, ahead of friends, education, careers and even religion. That’s the finding of LifeWay Research based on a wide-ranging August 2009 survey of 1,200 Millennials in the United States. The study forms the basis for the upcoming book “The Millennials: Connecting to America’s Largest Generation” by Dr. Thom Rainer and his son Jess Rainer . . . ”

Bernard Kouchner writes at the Christian Science Monitor: “However, the temptation to repress free expression is always present. The number of countries that censor the Internet, that monitor Web users and punish them for their opinions, is increasing at an alarming rate. The Internet can be used against citizens. It can be a formidable intelligence-gathering tool to spot potential dissidents. Some regimes are already acquiring increasingly sophisticated surveillance technology . . . Another project is close to my heart. It will be a long and difficult task to implement it, but it is critical. It is to give the Internet a legal status that reflects its universality. One that recognizes it as an international space, so that it will be more difficult for repressive governments to use the sovereignty argument against fundamental freedoms . . . ”

Eve Conant writes at Newsweek: “As dean of Harvard Law School, Elena Kagan advocated for gay rights, strengthening her support among liberals and making conservatives uneasy.”

Washington Post: “The poll, conducted May 3-6, finds that 46 percent overall favor legal same-sex marriage, 44 percent oppose it, and 10 percent have no opinion. Among registered voters, 48 percent are in favor and 43 percent are opposed.”

Daily Record: “Plans for a crackdown on lap dancing clubs will be backed by the Scottish Government, the Justice Secretary said today . . . The committee is considering proposals by SNP MSP Sandra White to tighten licensing rules for lap dancing venues, which could see them being banned.”

ReliefWeb: “6. This support shall ensure that the main components of health systems – health workforce, access to medicines, infrastructure and logistics, financing and management – are effective enough to deliver universal coverage of basic quality care, through a holistic and rights based approach. In this regard, particular attention will be devoted to the four main health challenges (sexual and reproductive health, child health, communicable and non-communicable diseases) and to the multidimensional nature of health, with close links to gender, food security and nutrition, water and sanitation, education, and poverty . . . Health systems should pay special attention to gender equality, women’s needs and rights, including combating gender-based violence. Recalling relevant international instruments, the Council recognizes women’s rights to have control over, and decide freely and responsibly on matters related to their sexual and reproductive health . . . ”

“. . . there are an estimated 200,000 people, including children, living in 16,000-20,000 polygamous families in France . . . ”

“Thieves have stolen a cross in the Mojave Desert that honored American war dead, less than two weeks after the U.S. Supreme Court allowed the religious symbol to remain on federal land . . . ”

AP: “A Swedish artist who received death threats for depicting the Prophet Muhammad as a dog says he was assaulted while giving a lecture at a university.”

Becket Fund: “Today, The Becket Fund for Religious Liberty sent a letter to South Carolina Attorney General Henry McMaster, asking him to fulfill campaign promises to defend South Carolina citizens’ religious liberties against hyper-secular special interest groups. The letter asks McMaster, who is currently running for governor, to help Spartanburg County School District No. 7 defend a state law that makes released time religious instruction classes available to high school students . . . ”

LifeSiteNews: “Planned Parenthood of Minnesota, North Dakota, South Dakota (PPMNS) has announced that they are constructing a new clinic and administrative headquarters in St. Paul . . . The 46,000 square foot, three-story, LEED certified ‘green’ structure is expected to open in 2011. It is one of a number of mega-clinics Planned Parenthood has opened recently or is planning to open, such as the 78,000 square-foot Houston facility that some have called the largest abortion center in the western hemisphere . . . ”

ADF Attorney Greg Baylor writing at speakupmovement.org/university: “According to the press account, Hope distinguishes between same-sex sexual conduct and same-sex attraction. Persons who experience the latter are to afforded ‘fair and kind treatment’; persons who engage in the former (and in other forms of extramarital sexual conduct) are urged to repent. This is quite similar to the position taken by Christian Legal Society, which has been involved in litigation across the country on this issue — including a case now pending in the Supreme Court.”

WorldNetDaily: “‘Any justice nominated to the Supreme Court should apply the Constitution faithfully and according to the intent of the founders who drafted it. As Thomas Jefferson said, the judiciary becomes a “despotic branch” if judges decide for themselves what is and is not constitutional,’ said Senior Counsel [Gary McCaleb], of the Alliance Defense Fund . . . ADF CEO [Alan Sears] said, ‘Thomas Jefferson noted in 1804 that “the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the legislature and the executive also in their spheres, would make the judiciary a despotic branch.”‘”

Washington Post: “‘The act is thousands of pages of new government power, decision-making and funding,’ said [Matthew S. Bowman] of the Alliance Defense Fund, which represents workers who object on religious grounds to being required to provide some forms of health care. ‘Any government power over health care can be exercised in a way that discriminates against pro-life health providers, especially when officials already support abortion and oppose enforcement of conscience laws.’”

Jonanathan Saenz of the Liberty Legal Institute writes at the Star-Telegram: “The debate over Texas social studies is out of control again . . . Why? It’s all about politics. The board is made up of 10 Republicans and five Democrats who are elected by Texas voters. That is a problem for liberals who see the public school system as the best way to radically change the course of our nation by changing the worldview of the next generation and distorting our history. Finally, after four public hearings and more than 14 months of review and discussion, they have confessed their true motivation: to control what our kids are taught in school by keeping some teachers, parents and the democratic process out . . . ”

LifeNews: “She called them ‘avengers of ‘innocent life’ who were ‘beneficiaries of a general turn to the right and a profound disorganization on the left.’

LifeNews: “To hear mainstream media outlets like the Associated Press and Washington Post tell the story, Supreme Court nominee Elena Kagan once urged President Bill Clinton to back a ban on partial-birth or late-term abortions. The take from the stories is that Kagan’s rock solid pro-abortion views aren’t that strong. Nothing could be further from the truth . . . ”

Mystateline.com: “The seven-floor, 78-thousand-square-foot complex has been called an abortion ‘Super Center’ by pro-lifers. For Planned Parenthood, the stairstep-shaped building will be the main headquarters for 35 counties in Texas and Louisiana.”

Times-Picayune: “A bill that would give the secretary of the Department of Health and Hospitals the authority to immediately suspend the operations of abortion clinics that do not comply with federal or state standards sailed out of the House on Monday on an 89-0 vote. House Bill 1370 . . . ”

Tulsa World: “House Bill 3284 requires a lengthy questionnaire be completed by doctors performing abortions and women receiving them.”

San Francisco Chronicle: “Democrats seething about Gov. Arnold Schwarzenegger’s decision to call a special election next month for the state Senate seat vacated by Lt. Gov. Abel Maldonado – a move that they believe increases Republicans’ chances of keeping the seat – have gone to federal court to block the vote.”

“Three same-sex couples who have tried, and failed, to get marriage licenses in Hennepin County are suing to overturn the state’s ban on such marriages.”

Eugene Volokh writes at the Volokh Conspiracy: “The case is Wallace v. City of Philadelphia, (E.D. Pa. Apr. 26). The court’s reasoning: 1. Because the police department didn’t allow anyone to wear a full beard, it had no obligation under the Free Exercise Clause to carve out an exemption for religious objectors . . . ”

Jonathan Adler writes at the Volokh Conspiracy: “In 1995, then-law professor Elena Kagan wrote that Senators should ask, and judicial nominees should answer, more probing questions about a nominee’s judicial philosophy . . . Does Kagan still hold this view? Maybe not, according to Ron Klain, Chief of Staff for Vice President Biden . . . ”

“What role, if any, should parents and schools play in a child’s emerging sexual orientation? Sparks have been flying around that question this spring . . . ”

Religion Clause Blog: “Yesterday the Toronto Globe & Mail and Parentcentral.ca both report that increasingly unemployed, non-religious teachers are turning to Catholicism in order to get a teaching position . . . ”

The Examiner: “The brief contends that denying marriage to same-sex couples inflicts psychological harm on children being raised by same-sex couples as well as on gay and lesbian youth. The brief was filed in support of the motion filed by Lambda Legal in March asking the New Jersey Supreme Court to grant same-sex couples the right to marry.”

ADF attorney Jordan Lorence appeared on Freedom’s Ring with Alan J. Reinach to discuss the Cal. marriage trial in Perry v. Schwarzenegger. | MP3 Audio -13:32 mins

SCOTUS Blog provides a round up of information concerning Kagan.

Institute for Marriage and Public Policy: “The April 2010 Marriage Law Digest, edited by Bill Duncan of the Marriage Law Foundation, is now available here.”

AP: “The two proposed referendum drives challenging Arizona’s new sweeping law targeting illegal immigration are being abandoned, organizers said Monday.”

Phyllis Schlafly writes at Townhall: “The liberal double standard is undeniable. Liberals who insisted that Clarence Thomas was too inexperienced to be on the Supreme Court now defend a nominee who has written little, litigated even less and not decided a single case. Instead, Obama tries to force on Americans someone whose background shows she is more interested in remaking the law than in applying it impartially. A baseball umpire would be a better selection — and probably fairer, too . . . ”

AP: “Vice President Joe Biden is predicting that Supreme Court nominee Elena Kagan will win Senate confirmation with ‘strong bipartisan support.’”

ACLU: “The modifications sought by the ACLU to enhance the standards include a set of recommendations to better protect the safety of lesbian, gay, bisexual, transgender and intersex (LGBTI) inmates, who are especially vulnerable to sexual abuse in prison. These specific recommendations were submitted in cooperation with the National Center for Transgender Equality, the National Center for Lesbian Rights, the Transgender Law Center and LambdaLegal.”

Bloomberg: “That lack of judicial and litigation background — 14 months as U.S. solicitor general and two years as a private lawyer after finishing law school — leaves opponents without much of a record from prior cases with which to criticize President Barack Obama’s second high-court nominee.”

FoxNews: “The World Health Organization is moving full speed ahead with a controversial plan to impose billions of dollars in global consumer taxes on such things as Internet activity and everyday financial transactions like paying bills online — while its spending soars and its own financial house is in disarray . . . What it all means is that a major lobbying effort could soon be underway to convince rich governments in particular to begin taxing citizens or industries . . . ”

Autonomy, Imperfect Consent, and Polygamist Sex Rights Claims
Jacob Richards, 98 Cal. L. Rev. 197 (2010)

“This Comment seeks to determine whether polygamy activism is intelligible within a broader sex rights framework. If so, what insights does such activism offer to the ongoing debates over sex rights? A close examination reveals that the Bronson case is not out of the ordinary in a complex tradition of sex rights claims. Such claims have often had a multifaceted, or even contradictory, relationship with varying ideas of autonomy, equality, and freedom from sexual- and gender-based harm. One of polygamy activism’s most interesting contributions to this tradition is the way it prompts questions about the law’s treatment of an issue that has surfaced in other sex rights claims but has never been satisfactorily resolved: what I will refer to as ‘imperfect consent.’ The term ‘imperfect consent’ describes moments where the ability of a person to consent to an act is questionable either because the act is arguably harmful to the person, or because social or cultural pressures potentially compromise the person’s autonomy. Polygamy raises questions about autonomy and imperfect consent when women claim the right to choose polygamous relationships despite concerns that social or religious coercion may cast doubt upon whether they are choosing such relationships freely. Through a comparison of the legal treatment of polygamy, pornography, sadomasochism, and abortion, this Comment will explore the law’s failure to address questions of imperfect consent in a principled manner and will present suggestions to remedy this failure.”

“Cover My Pills”: Contraceptive Equity and Religious Liberty in Catholic Charities v. Dinallo
Ayelet S. Lebovicz, 16 Cardozo J.L. & Gender 267 (2010)

“In this Note, I will begin with a brief discussion of the legislative backdrop in which Catholic Charities arose. I will then provide an overview of the WHWA and the procedural history of the case. In particular, I will focus on the decision of the New York Court of Appeals–the last court to consider fully the merits of Plaintiffs’ claims–to affirm summary judgment against them. I will next survey the relevant First Amendment doctrine, including the Supreme Court’s treatment of both free exercise and free speech. Lastly, I will evaluate the constitutionality of contraceptive mandates such as the WHWA. Rethinking Plaintiffs’ First Amendment claims, I argue that, under Employment Division v. Smith, the Court of Appeals erroneously rejected Plaintiffs’ hybrid-rights theory as dicta. I will further argue that Rumsfeld v. Forum for Academic and Institutional Rights, Inc. does not foreclose Plaintiffs’ claim of forced communicative conduct under the Free Speech Clause. The Court of Appeals thus improperly discarded Plaintiffs’ claims as insubstantial. Because the WHWA burdens Plaintiffs’ exercise of religion and forces them to engage in expressive conduct, the Court of Appeals should have applied strict scrutiny to find its contraceptive mandate unconstitutional as applied to them.”

Lost Children: The Abuse and Neglect of Minors in Polygamous Communities in North America
Kelly R. Schwab, 16 Cardozo J.L. & Gender 315 (2010)

“Polygamous behavior has always been considered an unlawful practice. The Supreme Court in Reynolds explicitly held that the Free Exercise Clause does not protect plural marriages in the name of religion. Nevertheless, because of the deeply rooted societal notions protecting religious freedom and privacy, attempts to criminalize the unlawful act have failed; practitioners continue to argue that polygamy is protected by the Free Exercise Clause despite court decisions and legislation to the contrary. In the wake of the YFZ incident, state legislatures have again taken a less tolerant approach toward polygamous behavior, specifically because of the widespread abuse and illegal activity that surfaced in fundamentalist Mormon communities throughout the country. In this Note, I examine religion-based abuse in polygamous communities and how the widespread abuse and neglect of children in Mormon communities of North America is indicative of the conflict between protecting religious freedom and protecting the rule of law.”

Informed Choices and Uniform Decisions: Adopting the ABA’s Self-Enforcing Administrative Model to Ensure Successful Surrogacy Arrangements
Christine Metteer Lorillard, 16 Cardozo J.L. & Gender 237 (2010)

“Non-traditional families are on the rise in America today, with more and more same-sex couples raising families together. Yet, all same-sex partners seeking to become parents must make use of some assisted reproductive technique (‘ART’), as must some heterosexual married couples. Despite the growing number of people who want to create families, including those that resort to ARTs to have genetically-related children, there are significant moral, economic, and legal obstacles in their way. What has long been needed is a codified roadmap for a successful surrogacy agreement that delineates the rights and obligations of the parties involved, as well as the responsibilities to the resulting child. In addition, such a codified roadmap must vest parentage automatically in the intended parents, with no judicial intervention or approval required, so that the children born are guaranteed their legal parents from conception. This article argues that state courts and legislatures need to emerge from the ‘uncharted waters’ of surrogacy and adopt the ABA’s self-executing, administrative model for surrogacy agreements. Adoption of this model not only allows prospective intended parents to know that their intent will be legally preserved, but also ensures that children born to them are treated equally. Such an attempt to equalize children’s status demonstrates a policy for eliminating the penalty for illegitimacy and ensuring that children born through surrogacy enjoy the same rights as children born to a married couple.”

Tightening the Bible Belt: Teaching the Good Book in Georgia’s Public Schools
Gregory A. Frayser, 3 J. Marshall L.J. 393 (2010)

“One of the latest debates concerning the relationship between government and religion is the constitutionality of Bible classes in public schools. Several states, including Georgia, have passed legislation authorizing and funding public school courses that teach about the Bible. Part II of this comment addresses the historical backdrop of religion in public schools, including an analysis of the legal standards used in evaluating complaints under the Establishment Clause. Part III offers an evaluation of the arguments for and against the inclusion of religious study, and in particular the study of the Bible, in American public schools. Parts IV and V examine Georgia’s Bible courses and the possible constitutional issues surrounding them. Parts VI and VII conclude that the courses may be constitutionally suspect and present a recommendation as to how the State could alter the courses in order to avoid costly litigation.”

Alice Ristroph and Melissa E. Murray, Disestablishing the Family. Yale Law Journal, Forthcoming; UC Berkeley Public Law Research Paper No. 1567867. Available at SSRN: http://ssrn.com/abstract=1567867

“This Essay explores what it would mean to disestablish the family. It examines a particular theory of religious disestablishment, one that emphasizes institutional pluralism and the importance of competing sources of authority, and argues that this model of church-state relationships has much to teach us about family-state relationships. Though substantial rights to what might be called ‘free exercise of the family’ have been recognized in American constitutional doctrine, at present there is no parallel principle of familial disestablishment. The state is free to regulate families qua families, and to encourage or discourage certain kinds of familial relationships. This Essay suggests reasons to rethink these existing familial establishments. Disestablishment is a risky and unpredictable enterprise, but its risks may be the risks inherent in liberty.”

Confusion and Coercion in Church Property Litigation
Brian Schmalzbach, 96 Va. L. Rev. 443 (2010)

“If, after a relatively calm decade in the 1990s, the Protestant Episcopal Church thought its role on the church property front of the American Kulturkampf was over, it was in for a rude awakening. The 2003 ordination of Gene Robinson, an openly homosexual bishop, ignited a firestorm of dissent and ultimately provoked dozens of Episcopal parishes and even whole dioceses to leave one of the oldest Protestant denominations in America. The conflict reached a head in 2006, when eleven Virginia parishes withdrew from the Episcopal Church and affiliated with the Convocation of Anglicans in North America. The massive, multi-million dollar litigation over property worth tens of millions of dollars that followed concerned one simple question: Is the local parish or the supercongregational denomination entitled to retain control of church property? Answering this question has implicated a host of exceedingly complex constitutional problems.”

Rusell Berman writes at The Hill: “She quoted from a speech Marshall gave in 1987 in which he said the Constitution as originally conceived and drafted was ‘defective.’ . . . Yet Republicans made plain their disagreement with the view of judging expressed by Marshall and endorsed by Kagan — that ‘it was the role of the courts, in interpreting the Constitution, to protect the people who went unprotected by every other organ of government — to safeguard the interests of people who had no other champion.’ ‘Elena Kagan’s endorsement of this empathy standard,’ Heye wrote, ‘has been rejected by the American people.’” . . .

The Universal School Vouchers Roadblock: Constitutional & Public Policy Barriers to School Choice in Georgia
Amelia A. Ragan, 3 J. Marshall L.J. 423 (2010)

“Section II of this comment will explain the history of school vouchers legislation in Georgia. Section III will discuss the federal laws implicated by school vouchers programs and how those laws affect the implementation of such programs in Georgia. Section IV will analyze the state constitutional and public policy challenges to universal school vouchers programs using the language of Senate Bill 90 as an example. The author concludes that implementing a vouchers program, such as the one proposed by Senate Bill 90, would violate the Georgia Constitution, would violate public policy, and would not provide Georgia parents with the means to choose a better education for their children. If greater school choice opportunities are to be a realistic goal for Georgia students, the General Assembly should consider only legislation which makes significant changes to and improvements upon Senate Bill 90.”