Daily Archives: November 1, 2010

A divided three-judge panel of the 9th U.S. Circuit Court of Appeals granted the U.S. government’s request for a stay while it challenges the trial court’s ruling that the ban on openly gay service members is unconstitutional.

Pravda: “It is an open secret that the Church recognizes only one form of close relationship between a man and a woman – legal marriage. A growing number of people believes nowadays that tying the knot is not a necessity at all, because two people can love each other and live together without paper formalities. Will marriage become a prerogative of religious couples only some time in the future?”

ACLU Press Release: “The U.S. will undergo the first-ever Universal Periodic Review (UPR) of its human rights record before the U.N. Human Rights Council (HRC) on Friday, November 5 in Geneva, Switzerland. The American Civil Liberties Union, which is in Geneva to observe the proceedings and participate in side events, welcomed the U.S. participation in the UPR process as an important step toward protecting and promoting human rights at home, and said there are still many areas that need significant improvement in the U.S. The ACLU called on the Obama administration to address existing human rights violations and urged policy reform in order to fully comply with U.S. human rights obligations.”

Hays Daily News (AP): “The city of Manhattan is considering charging churches and schools for their use of city water after more than 100 years of free service.”

Interfax: “Hegumen Filaret, a representative of the Russian Church in Strasbourg, believes the decision made by the European Court, which ordered the authorities to pay compensation for refusing to authorize several gay pride parades, insults the feelings of the majority of Russians.”

LifeSiteNews: “The Democratic candidate for governor of Vermont has told a pro-euthanasia lobby group that he would push to decriminalize the actions of those who help others kill themselves.”

The Star-Ledger: “The New Jersey Department of Education denied approval for the Bergen Regional Charter School, which would have joined three other charter schools in the county operating independently but with taxpayer money. Opponents deemed the charter school unnecessary, claiming the surrounding school districts are not low-performing.”

Chuck Colson and Catherine Larson writing at Christianity Today: “Who started the divisive culture wars in the first place? Far from being the aggressors—as the press would have us believe—religious conservatives have simply been responding to the relentless secularization of American life . . . This is no time for despair. And it is no time for retreat. Instead, it is time, in the tradition of Augustine, to work for justice and the common good—not just for ourselves, but for all who are made in God’s image.”

UPDATE: Arizona Republic: “Maricopa County voters can wear ‘tea party’ T-shirts into polling places Tuesday, a federal judge has ruled. U.S. District Court Judge James Teilborg issued the opinion hours before polls opened for the 2010 general election. The ruling applies to clothing representing other groups, as well, as long as the message doesn’t endorse a particular candidate or issue.”

Arizona Daily Star: “A government watchdog says it plans to file a lawsuit seeking a temporary restraining order preventing Maricopa County election workers from dictating what voters wear to the polls Tuesday.”

First Amendment Center (AP): “A group of young people and adults gathered and said a prayer before the start of a high school football game in southeastern Tennessee on Oct. 29 despite a ban on using loudspeakers to lead the event.”

Center for Reproductive Rights: “Today, a 1999 Arizona law regulating abortion providers went into effect. This comes after the U.S. District Court for the District of Arizona ordered to lift a 10-year stay back in May blocking enforcement of the regulations. The Center for Reproductive Rights and the defendants, including Arizona county attorneys, negotiated for years and finally agreed to significant changes to the law. The result of that settlement along with a 2004 appellate court decision resulted in considerably less intrusive requirements for abortion providers.”

CatholicCulture.org: “In an October 30 editorial, Father Federico Lombardi, the director of the Holy See Press Office, issued a call for full religious freedom in the Middle East.” The editorial is here.

The Reader: “The president of the Partido Popular, Mariano Rajoy, has refused to say if he is ‘committed’ to keeping the gay marriage law if elected Prime Minister in the next general election, as he says he is not sure if it is ‘constitutional.’”

“The Vermont Supreme Court says a family court was right to award custody of an 8-year-old girl to her non-biological mother in a lesbian custody case.”

Des Moines Register: “Voters remain split over the retention of Iowa’s Supreme Court justices, yet a new Des Moines Register Iowa Poll shows more than one-third now want to oust all three.”

California Catholic Daily: “The California Supreme Court has refused to hear an appeal by the owners of the Galleria Mall in Roseville in favor of an evangelical Protestant youth pastor over the shopping center’s restrictions on free speech. The high court’s Oct. 20 decision to reject the appeal lets stand a ruling by the California Third District Court of Appeal, which found the mall’s speech policy violated the state constitution.”

Mainline Media News: “Longtime resident Lou Devecchis at Monday’s commissioners meeting asked the board to adopt an ordinance banning lesbian, gay, bisexual and transgender discrimination. The ordinance would bar such discrimination in housing, employment and public accommodations, and create human relations commissions to investigate discrimination complaints, Devecchis said.”

The Journal Gazette (AP): “A judge is expected to decide this month whether a constitutional challenge to the way Indiana distributes education funding can continue in court.”

Toronto Sun: “Debate was feisty Monday morning in the House of Commons as MPs argued the pros and cons of a private member’s bill that would make it a crime to coerce a woman into having an abortion . . . The bill proposes up to a five-year prison sentence for a person found guilty of coercing a woman into having an abortion, and up to two years for a person found guilty of attempting to coerce a woman to do so.”

ACLU Press Release: “Today, the American Civil Liberties Union of Ohio urges school officials to adopt comprehensive education programs designed to educate students and parents about the consequences of bullying. The ACLU’s call to action comes after weeks of state and national reports of bullying and teen suicides caused by bullying.”

Mark Galli writing at Christianity Today: “Generation Y is into social justice — so say generation gurus . . . That Generation Y cares about social justice is linked to another aspiration: the yearning for significance. This generation wants to make a difference in the world, to work on things that matter, engage activities that change the world. Again, this is hype, since people in every era want this. But it is nonetheless something to celebrate whenever we find it. But before we break out the champagne, we are wise to consider the seamier sides of this aspiration. First, the yearning for significance can be nothing more than ego masked as altruism . . . Second, the search for significance, especially if it requires changing the world, can blind us to the everyday tasks, the mundane duties, and the dirty work that is part and parcel of the life of discipleship.”

Huffington Post: “Ted Olson talked about the importance of new media and legalizing gay marriage at HuffPost’s 2010 Game Changers celebration in Soho on Thursday night.”

Mercury News (AP): “San Francisco school officials have gone on the offensive against students who lie about where they live so they can attend the city’s schools.”

Washington Post: “The Supreme Court is passing up an election eve chance to weigh in on campaign finance disclosure rules for groups that raise and spend money independently of candidates.”

Mark Hemingway writing at The Washington Examiner: “On Oct. 8, the two senators from the Health, Education, Labor and Pensions (HELP) Committee held a hearing on ‘Retirement (In)security in America.’ Among the proposals discussed was ‘Guaranteed Retirement Accounts,’ or GRAs. The purpose of the GRA proposal is simple: To force Americans to stop putting their retirement savings money into private 401(k) accounts and send their money to the government instead.”

Catholic News Agency: “In its November edition the Argentinean Catholic magazine Familia y Vida (Family and Life) has published a full report on the violent attacks against pro-life advocates that took place at the National Women’s Conference in the city of Parana between Oct. 9 and 11. While the country’s secular media completely ignored the story, Family and Life published its November edition early in order to provide readers complete coverage, including analysis, eye-witness accounts and exclusive photos filed by its team of journalists.”

The Heritage Foundation: “Amidst the flurry of political activity taking place this week, outside the voting booth another important policy issue is up for consideration. This Wednesday, November 3, school choice will be on trial at the United States Supreme Court, courtesy of the American Civil Liberties Union.”

Arizona Republic: “In an hour-long hearing Monday, three federal judges peppered lawyers on both sides of Senate Bill 1070 with testy rapid-fire legal questions as the 9th U.S. Circuit Court of Appeals began considering whether to keep portions of Arizona’s immigration law from going into effect.”

ADF’s Weekly Update is on YouTube here: http://www.youtube.com/watch?v=waEIv-vbHZI

Israel Defense Forces: “The Israel Security Agency (ISA) reported last week that Hamas began to intensify its use of the Internet for spreading Islamic values and religion, in an effort to shape the Gaza Strip as it wants it, according to the spirit of the strategic Islamization process plan gradually imposed, in order to turn Gaza into a state governed by Islamic religious law.”

WINK News: “Jacksonville gay rights activists are meeting with business leaders to get their support for a measure that would ban discrimination based on sexual preference.”

AFP: “A scheme launched on Monday to provide girls as young as 13 with access to the contraceptive pill without their parents’ knowledge has been defended by the NHS primary care trust running the service.”

The Queensland Times: “Immigration officials ordered a citizenship ceremony be moved from a church hall – because the venue may offend non-Christians. The Rosewood Lions Club has been organising citizenship ceremonies in the town’s Uniting Church Hall for the past nine years with no complaints.”

The Jewish Chronicle: “A Chabad house at a prestigious American university has been vandalised. Attackers broke the bulbs and one branch of a statue of a menorah outside the Jewish centre, which serves students at the Northwestern University campus in Illinois.”

Christianity Today: “Today the Department of Education (DOE) will finalize a new set of regulations that have many private colleges and universities concerned and religious institutions downright alarmed. Formulated in response to allegations of financial-aid fraud at some for-profit institutions, these 80-odd pages of rules contain 14 different directives, one of which could provide a back-door threat to the ability of Christian colleges to control curriculum, admissions, and hiring standards. (Another rule, requiring for-profit universities to demonstrate a minimal rate of post-graduate employment, has been delayed after it drew protests.)”

The Christian Institute: “Girls as young as 13 on the Isle of Wight may be given a month’s supply of contraceptive pills without being referred to a doctor or informing their parents, under a divisive new scheme.”

Jewish Times: “Israeli Prime Minister Benjamin Netanyahu called the decision of a United Nations body to define the Cave of the Patriarchs and Rachel’s Tomb as Palestinian ‘absurd.’”

When Leviathan Speaks: Reining in the Government-Speech Doctrine Through a New and Restrictive Approach
Carl G. DeNigris, 60 Am. U. L. Rev. 133 (2010)

“This Comment will argue that current government-speech tests lead to inconsistent results, do not sufficiently focus on the concerns that led to the creation of the government-speech doctrine and, most importantly, do not ensure political accountability and provide adequate safeguards for private speech rights. It will propose that the Supreme Court refine its government-speech doctrine by establishing a reasonable-observer test similar to the endorsement test used in Establishment Clause jurisprudence and identical to the test used by Justice Souter in his recent concurrence in Pleasant Grove City v. Summum. It will further propose that courts guard against inappropriate use of the government-speech defense by assessing certain factors before permitting the government to use the defense. Part I will examine the history of the government-speech doctrine as it arose through key Supreme Court cases and how it has been applied by the circuit courts in the specialty license plate cases. Part II will analyze the current tests used to determine whether certain contested speech is governmental or private and the effectiveness and consistency of these tests. After showing that these current tests lead to inconsistent results and unnecessarily infringe on private speech rights, Part III will propose a stricter and more focused reasonable-observer test that will better ensure political accountability. Furthermore, Part III concludes that inquiries into both the interests involved and whether there are less intrusive means to protect governmental interests are necessary to protect First Amendment speech rights from abuse flowing from the government-speech defense.”

Forum 18: “Five Baptists in Azerbaijan were yesterday (31 October) given five day jail terms after a police raid the same day on a Harvest Festival celebration in a private home, Forum 18 News Service has learned.”

OneNewsNow: “An immigration reform activist is pleased Pope Benedict recently issued a statement supporting the right of nation states to protect their borders and regulate immigration. But he’s concerned that many Catholic priests have condoned illegal immigration . . . ‘But I wish that the American bishops would listen to what the pope says because they have been advocating for essentially open immigration here in the United States,’ [Ira Mehlman, a spokesman for the Federation for American Immigration Reform] laments.”

LifeNews: “The most recent poll from the state of Alaska finds pro-life Senate candidate Joe Miller coming back against pro-abortion candidates Lisa Murkowski and Scott McAdams. Miller now holds a 37-30-30 percentage point lead in the controversial contest, according to a new survey from the PPP polling firm.”

Matthew J. Franck writing at Public Discourse: “No originalist claims that all questions of the Constitution’s original meaning, or of its appropriate application in new settings, are easily answered. But Strauss surely exaggerates the magnitude of these difficulties, and fails to come to grips with the form of originalism that is prevalent today—the search for original meaning, which holds that the text of the Constitution has a meaning of its own, independent of the views (either the intentions or the understandings) of any particular individuals involved in making or ratifying its provisions. The point is to espy the ‘regression toward the mean,’ as it were: the meaning of a constitutional provision that is the best account that can be given of its principled purpose, in the context of a coherent whole into which it fits as a constituent part, serving the comprehensive intention of the generation responsible for it.”

LifeSiteNews: “Pro-life advocates should call on the Vatican to appoint bishops who will teach and defend the Church’s teaching on the transmission of human life, pro-life veteran John Smeaton, national director of the Society for the Protection of Unborn Children (SPUC), told the International Pro-Life Conference in Ottawa on Friday.”

OneNewsNow: “A major push is under way to have free contraception included under ObamaCare. A panel of experts advising the government meets in November to begin considering what kind of preventive care for women should be covered at no cost to the patient, as required under President Barack Obama’s overhaul.”

OneNewsNow: “A national defense analyst and Pentagon advisor doesn’t think a leaked Pentagon survey is accurate in saying a majority of active duty and reserve service members wouldn’t object to serving and living alongside homosexuals in the military service . . . ‘They did not ask the question whether or not homosexuals should serve in the military; they did not ask the question whether or not the ban should be lifted,’ Maginnis points out. ‘So any suggestion that the military members have no problem with homosexuals serving openly has to be taken with a lump of salt because that question wasn’t asked.’”

willam 580 Illinois Public Media: “A leading University of Illinois faculty member said it is good to see the Urbana campus initiating a process by which the contracts of faculty will be looked at before being renewed. The review process concerns adjunct faculty member Kenneth Howell . . . [who was] re-instated . . . after the Alliance Defense Fund threatened to sue the university . . . ‘This faculty committee says “look, we have to have some procedures in place to make sure that no one is just dismissed,”‘ [ADF Attorney Jordan Lorence] said. ‘Not because they’re a bad teacher, but because some people don’t agree with what he’s asserting in the classroom, and that would be a step forward for everybody.’”

Education Week: “[A]t least one conservative constituency largely is still waiting for its day in the high court. Over the past two years alone, self-described religious-liberty groups on the right have asked the justices to hear appeals in some half-dozen cases involving religious expression in the public schools. In each case, the Supreme Court has refused . . . Half a dozen or so conservative legal organizations, as part of their advocacy work, regularly take up the cause of student religious expression—and, in some cases, nonreligious expression as well. In addition to Liberty Counsel, others include the Alliance Defense Fund, in Scottsdale, Ariz.; the American Center for Law and Justice, in Washington; the Liberty Institute, in Plano, Texas, which is not affiliated with Liberty Counsel; the Rutherford Institute, in Charlottesville, Va.; the Southeastern Legal Foundation, in Marietta, Ga.; and the Thomas More Law Center, in Ann Arbor, Mich.”

Caffeinated Thoughts: “I read an op/ed written by Dr. Wayne Grudem who teaches biblical studies and theology at Phoenix Seminary. Prior to that he was at Trinity Evangelical Divinity School. I read the op/ed with interest as he rarely enters the political fray. In this op/ed he wanted to address pastors making endorsements from the pulpit, in particular, the Alliance Defense Fund’s encouragement to churches to do that very thing.”

LifeSiteNews: “Rabbi Yehuda Levin, spokesman for the Rabbinical Alliance of America, which represents more than 1000 Rabbis, has on behalf of his organization welcomed and endorsed the recent election-themed statements by American Cardinal-designate, Raymond L. Burke, Prefect of the Catholic Church’s highest court.”

Scott Rasmussen writing in The Wall Street Journal: “This isn’t a wave, it’s a tidal shift—and we’ve seen it coming for a long time. Remarkably, there have been plenty of warning signs over the past two years, but Democratic leaders ignored them. At least the captain of the Titanic tried to miss the iceberg. Congressional Democrats aimed right for it . . . But none of this means that Republicans are winning. The reality is that voters in 2010 are doing the same thing they did in 2006 and 2008: They are voting against the party in power.”

Associated Press: “An Arkansas school board member who said on Facebook that he wanted homosexual students to kill themselves has resigned from the panel.”

Arizona Republic: “A case to be argued Wednesday before the U.S. Supreme Court could settle once and for all the legal bounds of Arizona’s private-school tuition tax-credit program . . . The right-to-sue issue is more likely to be the main focus of attention for the justices because the Supreme Court already has endorsed a private-school voucher program, in Cleveland, that allows parents to spend state money on private religious or secular schools.”

Mike Adams writing at Townhall: “[German Chancellor Angela Merkel] had the guts to say that Germany’s recent drift towards multiculturalism has been an unmitigated disaster. And she went one step further calling on their immigrants to learn German and adopt Christian values . . . Merkel rightly understands that subsidizing immigrants does not make a country strong. In fact, it makes a country weak if the subsidies are not made in exchange for compliance with certain demands – such as speaking German and abandoning the Muslim practice of forced marriage.”

Associated Press: “Egypt has revoked licenses for satellite television uplinks, the latest in an intensified crackdown on the media ahead of the country’s crucial parliamentary elections later this month.”

Associated Press: “An award for gay and lesbian literature will be included in the American Library Association’s annual announcement of children’s prizes, a list which features the prestigious and influential Caldecott and Newbery medals.”

Associated Press: “Democrats believe they can secure their first all-Democratic Senate delegation from Alaska in more than 40 years, with their once-overlooked nominee making a late charge and claiming the momentum is in his favor in a heated three-way contest.”

Chiszar v. Indiana, No. No. 91A04-1004-CR-290 (Ind. App. Oct. 29, 2010)

“It is the nature of the looking that is at issue here. The ‘looking’ that is proscribed under the statute is ‘any looking of a clandestine, surreptitious, prying, or secretive nature.’ There can be no reasonable purpose for that kind of looking since, by definition, it is without the other person’s knowledge, and, therefore, it is without the other person’s consent. To look at someone in a clandestine or secret manner is to hide that looking from the other person, and it is that act that is proscribed by the statute. We hold that individuals of ordinary intelligence would comprehend the statute adequately to inform them of the proscribed conduct and that the statute is not unconstitutionally vague.”

LifeNews: “LifeNews.com is today predicting that Republicans will pick up nine seats in the Senate for a 50-50 split of the upper chamber of Congress. Based on poling data, polling trends and the movement and momentum in the closing week of the campaigns, it appears the Senate will have a historic tie, which pro-abortion Vice President Joe Biden will be able to break.”

LifeNews: “The state of Washington and the Planned Parenthood of the Inland Northwest have agreed on a settlement in a Medicaid fraud case that saw the abortion business routinely overcharge the state government. Initial audits from Washington state officials showed Planned Parenthood wrongly overbilled the state $629,143 over a three-year period, according to the Associated Press.”

Lyle Denniston writing at SCOTUSblog: “Drawing a sharp distinction between ‘nature’s handiwork’ and human invention, the Obama Administration has urged a federal appeals court to rule that no U.S. patent can be issued to give sole rights to a natural gene taken out of the body and used for medical research. The stance is directly contrary to long-standing government policy. The issue almost surely is headed ultimately to the Supreme Court.”

Daily Mail: “An increasing number of parents are being attacked by their children, a disturbing report reveals. Researchers warn that they are being subjected to physical violence, intimidation and aggression that goes far beyond normal rows and child development problems.”

“Eunice and Owen Johns, a Christian couple from Derby, have been trying to foster for three years. In 2007 Derby City Council withdrew the Johns’ application to be foster parents because of their biblical views on marriage and the family . . . ”

Arizona Daily Star: “Three federal judges will hear arguments today by attorneys for the governor on why Arizona should be allowed to start enforcing SB 1070 . . . Technically speaking today’s hearing . . . concerns whether U.S. District Judge Susan Bolton acted properly in enjoining the state from enforcing several sections while the case makes its way through the legal system . . . But the panel of the 9th U.S. Circuit Court of Appeals will need to reach at least a preliminary decision on arguments by the Obama administration that Arizona acted illegally in usurping power reserved for the federal government.” | News round-up from How Appealing.

Sylvia R. Lazos, Justice Myron Leavitt professor at UNLV’s William S. Boyd School of Law, and Chris W. Bonneau, professor of political science at the University of Pittsburgh, writing in the Las Vegas Review-Journal: “Nevadans are voting on whether to amend their constitution to provide for the appointment of Supreme Court justices and District Court judges. Here are the reasons why Nevadans should vote no on Question 1 . . . the system that is being proposed — initial appointment by the governor based on a recommendation from a commission — will result in a less open system run by elites who are closely connected to those in power.”

“Iraq’s dwindling Christian community was grieving and afraid on Monday after militants seized a Baghdad church during evening Mass, held the congregation hostage and triggered a raid by Iraqi security forces. The bloodbath left at least 52 people killed and 67 wounded – nearly everyone inside.”

OneNewsNow: “The Alliance Defense Fund (ADF) filed suit against the Holly Area School District in Michigan on behalf of a student and his mother when the boy was told by a teacher in June 2009 that nothing from a church could be distributed at school . . . He tells OneNewsNow the school district was missing the simple principle of equality. “There’s no endorsement of religion or anything like that when you just treat everybody equally [and] let everybody have a seat at the table, so to speak,” [ADF Attorney Matt Sharp] contends.”

OneNewsNow: “District Judge R. Michael Mullins recently decided the governor was not in violation of the state’s religious freedom clause because his proclamations do not force the law; they simply recognize individuals’ rights to practice religion . . . ‘That is a great win for 90 percent of us in America who pray and who want to be able to engage and participate in the National Day of Prayer,’ Alliance Defense Fund (ADF) attorney [Kevin Theriot] responds.” | More information here.

WorldNetDaily: “‘The right not to have an abortion is protected by law, and this right isn’t relinquished just because someone else considers the child to be an unwanted burden,’ said ADF Legal Counsel [Matt Bowman]. ‘This situation illustrates what a difference it can make when a woman is more fully informed about the true nature of abortion.’”

Baptist Press Culture Digest: “‘This has been a concerted effort to say, “If you have some kind of traditional moral faith, you have the wrong answer. We’re either going to silence you or we’re going to compel you to take part in an activity and approve it,”‘ [Joseph Infranco], ADF senior counsel, said.”

Baptist Press: “A Travis County District Court judge authorized the order Oct. 28, one day after the parents agreed in writing no longer to coerce their daughter to abort her child, who is at 14 weeks gestation, the Alliance Defense Fund (ADF) reported.”

Let’s Call the Whole Thing Off: Can States Abolish the Institution of Marriage?
Pamela S. Karlan, 98 Cal. L. Rev. 697 (2010)

“At several points in her characteristically acute discussion of the debate swirling around same-sex marriage, Professor Nussbaum suggests that perhaps the best solution to the current controversy is for the state to abandon the business of conferring marital status: ‘Might a good solution,’ she asks, ‘be for the state to back out of the expressive domain altogether, offering civil unions for both same-sex and opposite-sex couples?’ The state would replace marriage with a new nomenclature for officially recognizing family relationships, one that would not carry the baggage of tradition that marriage trails behind it like a car with tin cans tied to its bumper after a wedding.

Professor Nussbaum‘s tentative proposal raises a number of intriguing issues. First, is it actually possible for a state to ‘back out of the expressive domain altogether?’ Second, does the Constitution impose any constraints on a state‘s elimination of civil marriage.”

Haidar Ala Hamoudi, Ornamental Repugnancy: Identitarian Islam and the Iraqi Constitution (October 26, 2010). St. Thomas University Law Review, Forthcoming . Available at SSRN: http://ssrn.com/abstract=1698447

“Nearly six years after the enactment of Iraq’s final constitution, the Federal Supreme Court of Iraq has yet to render a single ruling respecting the conformity of any law to the ‘settled rulings of Islam’ despite being empowered to do precisely that under Article 2 of the Iraqi Constitution. This so-called repugnancy clause is swiftly devolving from a matter that was of some importance during constitutional negotiations into one that is more symbolic than real – an assertion of identity, primarily of the Islamic variety (though when combined with Article 92, to some extent of the Shi’i Islamic variety) – more than a phrase of legal substance. Iraqis appear to have reached a careful, unspoken consensus, that irrespective of the extent to which Islam or Islamic law is to be relevant in Iraq, the judiciary is not the institution best equipped to address questions of Islamicity of law, and thus Article 2, and indeed the very notion of repugnancy, is, at best, marginal in terms of its legal effect. The purpose of this Article is to explain how this came to be.”

Mary Jean Dolan, P.S. Untold Stories and the Cross National Monument (October 26, 2010). Available at SSRN: http://ssrn.com/abstract=1697483

“This Article offers an interesting post script to the Supreme Court’s Salazar v. Buono Establishment Clause decision. It presents some surprising non-record facts and additional issues raised by Congress’s 2002 designation of the Mojave Cross as a ‘National Memorial.’ This Act deserves more exploration, particularly because it appears wholly extraneous to the government policy approved by the Supreme Court plurality: ending the appearance of government endorsement of religion, while simultaneously ‘avoid[ing] the disturbing symbolism associated with the destruction of the historic monument.’

Included in the new information is evidence that National Memorial status is not as lofty or rare as it would seem, the cross does not appear to be the sole WWI memorial for the nation, and in the past, Congress has abolished National Memorial status upon transferring the land. The Article also looks at the intersection of historic preservation law and Congress’ requirement that the Secretary of the Interior fund and install a new replica cross on Sunrise Rock.”

Mary Jean Dolan, Salazar V. Buono: The Cross Between Endorsement and History (September 14, 2010). Northwestern University Law Review Colloquy, Vol. 105, p. 42, 2010. Available at SSRN: http://ssrn.com/abstract=1697472

“Despite its procedural complications and six opinions, Salazar v. Buono provides some potential insights into the Supreme Court’s evolving approach to religion in the public square. Competing approaches have stressed either preserving history or avoiding government endorsement of religion. This Article analyzes a potential new synthesis which is suggested by Justice Kennedy’s plurality opinion and Justice Alito’s concurrence in the judgment.

The Mojave Cross case involves a war memorial erected in 1934 by WWI veterans on remote federal land, in what later became the Mojave Desert Preserve. In the first round of litigation, the lower courts had found an Establishment Clause violation and enjoined display of the cross. Before the Supreme Court was the validity of a statute transferring the land to the VFW. The plurality remanded to the district court, strongly suggesting that the transfer would end any appearance of government endorsement of religion.

The Kennedy and Alito opinions can be viewed as describing an expanded endorsement test, which takes the “reasonable observer” one step further along the ‘endorsement test continuum,’ by adding another contextual factor to be considered. Both Justices suggested that privatization of a longstanding religious-historical symbol, when done to avoid showing disrespect for military sacrifice, is unlikely to be viewed as a government endorsement of religion. Given the realistic threat that the Roberts’ Court will adopt an undiluted historical approach, this Article shows the potential resiliency of endorsement-style contextual analysis, and whether the Salazar v. Buono version can be reconciled with the test’s equality rationale.”

Two Nations, One Web: Comparative Legal Approaches to Pornographic Obscenity by the United States and the United Kingdom
William T. Goldberg, 90 B.U. L. Rev. 2121 (2010)

“Modern American obscenity law has developed over a period of approximately fifty years. The foundation of the law is built around a single test, the ‘community standards test,’ which tasks a trier of fact with gauging whether given materials would be considered obscene by the standards of the average member of the community in which they are made available. If that trier of fact deems those materials obscene, then the producer or distributor of such materials may face fines or imprisonment. The application of the community standards test has been refined, but never fully clarified. Thus, questions debated at the test’s first official implementation by the Supreme Court in the 1950s are still in question today: What types of materials actually fall within the scope of obscenity? What is the proper definition of the ‘community’ from which we should draw our standards? What role should individual privacy rights play? How do political pressures impact the application of obscenity laws? More recently, how should this standard apply following technological advances, like the internet, which have expanded the volume and variety of potential obscenity available in any given place at any given moment? This Note examines the underlying issues in U.S. obscenity law that raise these questions, yet primarily focuses on the impact of the internet on modern obscenity law in the United States and the United Kingdom.

Part One examines these basic questions and explores their complexities. Part Two introduces and examines recent changes in U.K. law that address many of these same questions. Effective in 2009, the Criminal Justice and Immigration Act 2008 sharpened the United Kingdom’s definition of obscenity by imposing a strict liability offense for possession of ‘extreme pornography.’ Until this change, U.K. and U.S. obscenity laws were very similar, but this new Act imposes greater individual responsibility on consumers of such depictions, and also provides a far more precise definition of the prohibited materials. Part Three attempts to reconcile the tensions in U.S. law with the changes in U.K. law. The discussion focuses on the divergence in the laws and the consequence, if any, such divergence could, or should, have on American obscenity law.”