Daily Archives: October 13, 2010

William Wagner writes at writes at Baptist Press: “The Muslim strategy to change the world in the next century is impressive. The strategy includes four prongs, which are . . . ”

Omaha.com: “On Wednesday, Vander Plaats said being a servant of the law, ‘doesn’t give the Iowa Supreme Court the authority to legislate from the bench, execute from the bench or attempt to amend the Constitution.’”

CNSNews: “The White House weighed a quick appeal of a judge’s order abruptly allowing gays to serve openly in the military as Pentagon chief Robert Gates warned on Wednesday of “enormous consequences” for men and women in uniform if the ruling stands.”

PR Newswire: “While California liberals and conservatives have spent two years on opposing sides of the marriage definition issue, a new analysis released by California Healthy Marriages Coalition (CHMC) reveals that Californians with differing political party affiliations overwhelmingly agree on a number of marriage and divorce-related issues. In an unprecedented in-depth study, The State of California’s Unions, commissioned by CHMC . . . ”

Yahoo News: “That’s what worries Ann Haas, research director for the American Foundation for Suicide Prevention. By putting forth bullying as a “cause” of suicide and ignoring underlying mental-health issues that are present in 90 percent of people who die by suicide, the national media may be “normalizing” suicide as a rational response to bullying.”

Charisma News: ADF attorney Austin R. Nimocks said the D.C. Charter, which serves as a constitution for the district, guarantees citizens the right to initiate and vote on legislation, except for measures appropriating funds and other initiatives beyond the council’s scope. ”The decision from the D.C. Court of Appeals means that those living in our nation’s capitol are being denied the right to vote, and we hope the Supreme Court will restore this guaranteed right in the district,” Nimocks said. “The four dissenting judges were correct that the D.C. Council exceeded its authority when it imposed an unwarranted limitation on the citizens’ right to vote

An ADF-allied attorney filed a lawsuit Tuesday on behalf of an elementary school principal against the Goleta Union School District after it threatened to end his contract for appearing in a short video promoting the 52nd Annual Community Prayer Breakfast to honor teachers.

Alliance Defense Fund and Stand4MarriageDC attorneys filed a petition with the U.S. Supreme Court Tuesday asking the justices to weigh in on the right of District of Columbia residents to vote on the legal definition of marriage.

http://cbs4denver.com/wireapnewswy/Wyoming.governor.candidates.2.1959616.html

John Cowan and Evan Wolfson write at the LA Times: The GOP isn’t displaying its usual anti-gay election-year demagoguery, and not just in the “Pledge to America.”

Utah Statesman: “Silk, who currently teaches Religion in Public Life at Trinity College, said people across the country, particularly in the Pacific Northwest and New England, are increasingly holding an atheist view. Silk also offered some reasons why an increasing number of people may share these views.”

Christian Post: “Conservatives are calling on the Obama administration to appeal a federal judge’s decision that the military must halt the enforcement of the “don’t ask, don’t tell” policy.”

RiaNovosti: “The head of the Russian Orthodox Church has decried gay relationship “propaganda” in Spanish secondary school textbooks.”

CNA: “Bishop Jaime Soto of Sacramento said that the meaning of human sexuality and relationships are ‘misunderstood and misused’ because contraception has become the ‘unquestioned default mode of marriage.’”

CBSNews: “The rise of anti-Muslim sentiment in America has brought with it a wave of largely-unsubstantiated suggestions from conservative media commentators and politicians that America is at risk of falling under the sway of Sharia law.”

LifeNews: “Researchers in Iran have published the results of a new study showing women who have an abortion face a 193% increased risk of breast cancer. On the other hand, women who carry a pregnancy to term find a lowered breast cancer risk compared with women who have never been pregnant.”

FRC Blog (includes video): “. . . it is not known if a young woman might have difficulty in recovering ovarian activity once it has been intentionally blocked.”

CNSNews: “The percentage of Americans who think the federal government poses “an immediate threat” to the rights and freedoms of ordinary citizens has increased significantly over the last seven years, rising from 30 percent to 46 percent, according to a Gallup poll conducted Sept. 13-16 and released today.”

Post-Gazette.com: “The state Senate is moving ahead on the confirmation of two new Common Pleas Court judges, including one in Washington County, even though Supreme Court Chief Justice Ronald Castille doesn’t want to add personnel due to budgetary problems.”

Iowa State Daily: “Gordon’s church also participated in Pulpit Freedom Sunday in September, a national effort organized by the Alliance Defense Fund, a conservative group, aimed at convincing pastors to endorse political candidates from the pulpit in violation of the current tax code.”

Benson News Sun: “Besides decisions about state and local offices, voters this November also have a lot of propositions to consider.”

AP: “The New Jersey attorney general’s office says an abortion doctor was “grossly negligent” for transporting some patients to Maryland to take advantage of disparities in the two states’ abortion laws.”

Christian Newswire: “Open Doors USA is launching an advocacy campaign called “Free to Believe.” The campaign will focus on helping persecuted Christians who currently do not have religious freedom like Christians do in the United States. The campaign is a response to the United Nations Defamation of Religions Resolution . . . ”

Stars and Stripes: Elaine Donnelly, president of the conservative Center for Military Readiness, said a decision not to appeal would ‘abandon fundamental constitutional principles allocating power and responsibility for military affairs to the legislative and executive branches.’”

Christian Post: “It has been nearly seven months since the White House’s faith-based advisers concluded their work with the release of a report of recommendations. But no new advisory council members have been named and the critical question surrounding the reformation of the faith-based office has yet been resolved.”

Tom Vander Ark writes at the Huffington Post: “A bunch of colleges are going out of business, only they don’t know it. They pretend that trimming costs and jacking tuition is a solution. They haven’t come to terms with a world where anyone can learn anything almost anywhere for free or cheap.”

LifeSiteNews: “According to Spanish Equality Minister Bibiana Aído, unborn human children are not human beings.”

NCPA Policy Digest: “In 2009, the Gallup research group reported that for the first time in 70 years of polling, a majority of Americans opposed labor unions.  An April Pew study showed that favorable ratings for unions had plummeted from 58 percent in 2007 to 40 percent in 2010.  In the same month, the Republican research group Resurgent Republic found more than two-thirds opposition to current levels of compensation for government employees, says Tim Cavanaugh, a senior editor at Reason Magazine.”

Timothy Sandefur writes at the Volokh Conspiracy:  ”It’s certainly true that the 1930s (what Auden called “a low, dishonest decade”) saw a profound shift in American constitutional law, but that change is best seen as the climax of a decades-long struggle by Progressives to change constitutional doctrines via interpretation. The Progressives, in fact, were quite explicit about this effort. In a 1924 profile of Oliver Wendell Holmes, Dorsey Richardson wrote that . . . ”

NY Times: “Virginia Thomas, the wife of Justice Clarence Thomas of the Supreme Court, is the founder and chief executive of Liberty Central, a nonprofit organization set up to ‘restore the greatness of America,’ in part by opposing the leftist “tyranny” of President Obama and Democrats in Congress. Its first contributions of $500,000 and $50,000 came from undisclosed donors. The size of those gifts, their anonymity and their importance to the organization raise a serious issue of ethics for Justice Thomas.”

“A federal appeals court upheld Washington state’s campaign-disclosure laws Tuesday, saying the requirements don’t violate the First Amendment rights of a group that didn’t want to reveal its donors in a 2008 opposition campaign to an assisted-suicide ballot measure.”

The National Right to Life Committee (NRLC) has produced a sworn affidavit, submitted today to the Ohio Elections Commission, demonstrating that the Obama health care law does in fact provide federal subsidies for elective abortion.”

NY Times: “The Supreme Court on Tuesday struggled to divine the balance Congress had meant to strike in a 1986 law that established a system to compensate people injured by vaccines while barring some, but not all, lawsuits against vaccine manufacturers.”

Bloomberg: “European Union regulators opened a probe into Italian tax breaks on real estate granted to the Catholic Church, saying they may distort competition.”

Religion Clause Blog: “It denied certiorari in Association of Christian Schools v. Stearns, (Docket No. 90-1461). In the case, the 9th Circuit rejected constitutional challenges to the University of California’s admissions policy . . .  In Garriott v. Winn (Docket No. 09-991) along with Arizona Christian School Organization v. Winn (Docket No. 09-987), — both on the Court’s docket for this term– the Court granted the motion of the Acting Solicitor General to participate in oral argument . . . ”

Public Discourse: “But the law was not always thought to be so wanting in the standards of judgment, and the judges expounding the law were not compelled to absorb, ever more deeply with each case, the premises of moral relativism. Until the 1970’s the cases on speech, and the harms inflicted through speech, were governed by the classic case of Chaplinsky v. New Hampshire (1942). Justice Frank Murphy observed in that case that certain well-defined and narrowly focused classes of speech have never been given protection under the Constitution.”

Heritage Foundation Foundry Blog: “The White House got the headlines they wanted today . . . Interior Secretary Ken Salazar told reporters on a conference call yesterday: ‘We are open for business.’ Don’t believe the White House or Salazar for a second. While yesterday’s announcement does remove one legal barrier to the resumption of energy investment in the Gulf, the Obama administration still retains full discretion over whether or not any new permits will be issued. And all indications are that those new permits will not be coming any time soon.”

Winston-Salem Journal: “Dean said the prayer issue could have been resolved with a policy that gives more room for all faiths to give the invocations. But the court fight to continue sectarian prayer at the meetings could well turn out to be a waste of taxpayers’ money, he said. Although supporters of sectarian prayer say a local group will raise enough money to cover any costs not borne by the Alliance Defense Fund, the conservative nonprofit handling the case, there’s no guarantee that the costs will be covered . . . ”

BeliefNet.com: “Shawn Byrne of West Rutland applied for a personalized license plate with the letters and numbers “JN36TN” referring to the Bible verse John 3:16. A month later, the DMV denied his application because the message was “deemed to be a combination that refers to deity,” according to a statement from the Alliance Defense Fund, which filed suit on behalf of Byrne in 2005.”

Mercury News (AP): “An elementary school principal in the Santa Barbara area filed a lawsuit against his school district Tuesday, saying he has been punished and threatened with firing for appearing in a video that promoted a prayer breakfast to praise teachers. An attorney from the Alliance Defense Fund filed the lawsuit in federal court . . . ”

Christian Web News: “Barham explains, ‘It claimed that those who believe that the Bible teaches against homosexual conduct…have a — quote — ‘fifth-grade understanding of God’. The First Amendment is quite clear. Going back all the way to the Founding Fathers, the clearest command of the First Amendment is that government cannot prefer certain religious views over others and certain religious denominations over others. [But] that’s exactly what this film was doing — and we’re just very pleased that Lakeshore Tech has recognized that and agreed not to show that film anymore.’”

USA Today: “Gordon said he has recruited leaders at more than 100 churches . . . The Liberty Institute, a socially conservative nonprofit group in Texas, has promised free legal protection to any church that joins the campaign. Gordon’s plan is one of several efforts by conservative churches to challenge the IRS on a law they view as unconstitutional. The Alliance Defense Fund, an Arizona organization that promotes conservative biblical values, has sponsored a "Pulpit Freedom Sunday" in recent years, a day when pastors speak specifically about candidates for office.”

CBN:“Religious opponents of same-sex marriage in Washington, D.C. represented by the Alliance Defense Fund have appealed the issue of gay marriage in the nation’s capital city to the U.S. Supreme Court.”

AP: “Norway has urged China to lift restrictions imposed on the wife of Nobel Peace Prize winner Liu Xiaobo after Norwegian diplomats were barred from visiting her in Beijing.”

AP: “A transgender woman is suing the LPGA over a requirement which states all competitors must be "female at birth.”

AP: “A group of eminent Chinese Communist Party elders has issued a bold call to end the country’s wide-ranging restrictions on free speech, just days after the government reacted angrily to the awarding of the Nobel Peace Prize to imprisoned dissident Liu Xiaobo”

AP: “Pentagon to cease enforcement of its policy barring gays from openly serving in the military, Gates told reporters that the question of whether to repeal the law should be decided by Congress, and done only after the Pentagon completes its study on the issue.”

Bloomberg: “More than 50 percent aren’t confident or are just somewhat confident their children will have better lives than they have. “I don’t think they’ve got a chance,” says Brian Rich, a 65-year-old retiree with three children in their 20s who lives in Gloucester, Massachusetts. ‘I’m very angry at what’s going on in this country. Change is being forced upon us.’”

Ralph D. Mawdsley, PARENTS’ RIGHT TO DIRECT THEIR CHILDREN’S EDUCATION: EXAMINING THE INTERESTS OF THE PARENTS, THE SCHOOLS, AND THE STUDENTS, 258 Ed. Law Rep. 461 (2010)

(Excerpt below, please use Lexis, Westlaw or comparable service to retrieve the full article)

One of the most fundamental and clearly established constitutional rights under the Liberty Clause is that of parents to direct the education of their children. However, this constitutional right, developed in the context of protecting the right of parents to choose the venue in which their children will be educated, is not absolute and has been asserted in other parental rights cases with mixed results. Thus for example, the right of parents to make educational choices may apply to the venues of education, but not necessarily to curricular choices or noncurricular activities within those venues. The right of parents to direct the education of their children does not necessarily apply equally to both of the natural or adoptive parents and, thus, the rights of custodial parents under state law best interest of the child analysis may be sufficient to resist efforts by noncustodial parents to circumvent state law and assert parental rights under the Liberty Clause. Public school districts that seek to punish public school employees for enrolling their children in private schools may find that the Liberty Clause can exert a long reach in protecting such parent decisions.
The emergence of constitutional rights for students in Tinker v. Des Moines Independent Community School District has added a new dimension to the discussion about parent rights. While litigation concerning alleged violations of student rights almost invariably involves parents as plaintiffs, the question that still remains is whether minor students could assert rights in opposition to those of their parents. Thus, for example, in balancing the parents’ interest in their child’s education and the child’s constitutional right to privacy, can minor children assert privacy rights to prohibit parent access to academic information from their school?
At stake is a fundamental definition of the parent-child relationship. As originally defined by the Supreme Court in the three Liberty Clause cases discussed below, constitutional protection for the right of parents to make decisions for, act on behalf of, and have access to information concerning their children touches on a variety of legal issues. The purpose of this article is to examine how judicial interpretations of the Liberty Clause have affected the rights of parents, school districts, and students.

The article is divided into five main parts. Part I analyzes the three Supreme Court decisions that framed the Liberty Clause right of parents to make decisions regarding the venue for their children’s education. Part II examines the impact of the Liberty Clause on the rights of custodial and noncustodial parents, as determined under state law using best interest of the child analysis. Part III discusses how the Liberty Clause can affect adverse employment decisions by school districts against public school employee parents who have made nonpublic educational choices for their children. Part IV explores how the Liberty Clause right of parents to direct their children’s education has been affected by four decades of judicial development of the constitutional rights of students. Part V reflects on discussions in the first four Parts and suggests implications for legal and education practitioners.

Brettschneider, Corey L. , A Transformative Theory of Religious Freedom: Promoting the Reasons for Rights (January 6, 2010). Political Theory, Vol. 38, No 2, April 2010. Available at SSRN: http://ssrn.com/abstract=1687409

Religious freedom is often thought to protect not only religious practices but also the underlying religious beliefs of citizens. But what should be said about religious beliefs that oppose religious freedom itself or that deny the concept of equal citizenship? The author argues here that such beliefs, while protected against coercive sanction, are rightly subject to attempts at transformation by the state in its expressive capacities. Transformation is entailed by a commitment to publicizing the reasons and principles that justify the basic rights of citizens.

Brennan, Patrick McKinley, Human Law and Natural Law in the Catholic Tradition: Authoritative Guides to the Good Life (October 1, 2010). TEACHING THE TRADITION: A DISCIPLINARY APPROACH TO THE CATHOLIC INTELLECTUAL TRADITION, J. Piderit, M. Morey, eds., Oxford University Press, 2011; Villanova Law/Public Policy Research Paper No. 2010-18. Available at SSRN: http://ssrn.com/abstract=168605

The Catholic tradition offers a distinctive account of the nature of human law and political authority. This chapter – written for a volume (to be published by Oxford University Press in 2011) that is intended to state the Catholic position(s) on a range of disciplines, from physics and astronomy to medicine and law – both develops the Catholic account of law and demonstrates its “pay off” at the level of contemporary U.S. constitutional law. The core of the argument is that the definition of human law is not a matter of custom or invention: the very definition of law is provided by what is first in the order of being, viz., the eternal law, in which humans in turn participate through the natural law. The natural law is a real law, not just metaphorically law, and it sets binding terms and conditions of human lawmaking. These include that (1) law is always what the lawgiver intended and promulgated and (2) true laws are always just and thus conducive to the good life human beings. The chapter develops these and other claims through an examination of how Buck v. Bell would be decided if Catholic principles of law were to guide the Court. The chapter shows that the Catholic position entails neither judicial “activism” nor passivism, but a much more nuanced role that is a function of the people’s and their rulers’ indefeasible obligation to make the natural law effective in their living.

Cleland B. Welton II, The Future of Locke v. Davey, 96 Va. L. Rev. 1453 (Oct. 2010)

(An excerpt is below. To view the full text, please use Westlaw, Lexis, a law library or alternative source.)

The legal academy has not yet accounted for these divergent lower-court interpretations of Davey. This Note responds to these developments and presents an argument for reading the case expansively. Part I introduces the problem through a survey of the historical context leading up to Davey and the decisions that have followed it in the lower courts. With that context in mind, Part II argues that Davey ultimately should be understood as resting on the premise that government can exclude religious entities from general funding schemes without offending free exercise. An analysis of how the case’s parts interact reveals that despite the Court’s relatively longwinded discussion, the clergy argument cannot control. Because it is ultimately a statement about the weight of the state’s interest, the clergy argument comes into play only after a reviewing court has settled on a standard of review. The Court at least implied that Washington’s program did not violate any fundamental rights, which suggests that no more than rational-basis review applied and that no more than a legitimate legislative purpose was required. Furthermore, Davey’s implied neutrality argument is self-defeating. It simply highlights the fact that neutrality is not a concept capable of a universally accepted definition. Without agreement about what it would mean to achieve the stated goal, there is little sense in trying to pursue it. A narrow understanding of the right to free exercise is in harmony with common understandings of other similar constitutional rights–namely, the rights to free speech and to abortion. While the government is (broadly speaking) obligated to protect citizens’ freedom in these areas, that duty does not carry with it an obligation to spend tax dollars in support of the exercise of that freedom. Similarly, the right to free exercise of religion is a right to religious autonomy; state action that falls short of actually restricting religious practice does not unconstitutionally “prohibit” it. This argument builds upon a recent article by Professor Nelson Tebbe by demonstrating that a careful reading of Davey in context compels a narrow, autonomy-based understanding of religious freedom as a matter of constitutional doctrine. While Davey should be read broadly, it does not establish an unlimited non-coercion reading of the Free Exercise Clause. Part III outlines and justifies four important limitations on the government’s power to exclude religion from its funding programs. First, it contends that the Davey Court’s fourth argument–that Washington’s scholarship program was not motivated by “animus” towards religion–should be understood as parallel to the Court’s use of that term in the equal protection context. That is, hostility towards a group of citizens is simply not an acceptable basis for enacting a law under any standard of review. Further, the government is not permitted to give some religions preferential treatment, or to condition unrelated welfare benefits on a citizen’s decision to forego his constitutional rights. Finally, Part III argues that Davey can and should be reconciled with Rosenberger v. Rector and Visitors of University of Virginia by proposing a new distinction between programs that are designed to promote speech (where the government cannot exclude religious viewpoints) and programs that are designed with other purposes in mind (where the government can constitutionally opt to favor secular activities over religious ones). This Note concludes with a brief discussion of some potential applications of the Davey decision and of the concepts for which it stands to contexts outside of education.