Daily Archives: February 2, 2011

National Post: “The current number of Muslims — 940,000 — comprises 2.8% of the Canadian population. A recent report from the Washington-based Pew Forum on Religion & Public Life said they will increase both in number and proportion of the country — 2.7 million, or 6.6% of the Canadian population, by 2030. By comparison, Muslims are expected to make up 1.7% of the U.S. population by that time.”

Lambda Legal: “Today the Ohio Supreme Court heard arguments in Lambda Legal’s case defending Michele Hobbs, a lesbian mother who was denied access to her child when she and her former partner, the biological mother, ended their relationship.” | In Re S.J.L. and J.K.L

A federal appeals court ruled unanimously Wednesday that a local trial judge in Ohio has no constitutional right to hang in his courtroom a poster of the Ten Commandments along with his own pointed comments about “moral relativism” and the rule of law.

Christian Post: “International pro-family group World Congress of Families is stepping into the fray, defending Chick-fil-A against gay rights advocates who have accused the fast food chain of financially supporting the anti-gay marriage movement. The Congress’s managing director Larry Jacobs criticized gay activists that are attacking Chick-fil-A as attempting to “crush” any dissenting views of the lesbian, gay, bisexual, and transgender movement.”

Bismark Tribune: “The House Education Committee met Tuesday to consider a bill that would force health teachers to push saving sex until marriage. House Bill 1229 . . . ”

The effort to undo the April 2009 Iowa Supreme Court decision in Varnum v. Brien that struck down the state ban on same-sex marriage now is in the hands of the Senate Democratic caucus, which has a 26-24 majority, Carroll said.

Daily Mail: “Families could be segregated from other passengers on planes or banned from flying on certain flights if campaigners hoping to persuade airlines to introduce adult-only flights get their way.”

Tom Berg, Marc Stern, Ed Gaffney, Robin Fretwell Wilson, Carl Esbeck, and Rick Garnett have forwarded this letter to the Maryland legsilature. (via Mirror of Justice)

Citizen Link: “Several years ago, Louisville, Ky., was home to 175 sexually oriented businesses — one of the highest concentrations in the country. Last year, the number had fallen to 63. And starting Tuesday, it could drop even lower.”

Mirror of Justice: “My post of Mark Rienzi’s new paper arguing that physicians have a constitutional right not to be required (by the state) to participate in abortions triggered this comment from Kevin Walsh:
What about laws that enlist doctors to provide scripted information about fetal development for women that seek to obtain abortions?”

Corruption in Government: “Judicial Watch, the public interest group that investigates and prosecutes government corruption, today announced that it has received documents from the Department of Justice (DOJ) that show DOJ worked hand-in-hand with the American Civil Liberties Union (ACLU) in mounting their respective legal challenges to SB 1070, Arizona’s get-tough illegal immigration law.”

ADF attorneys move forward with lawsuit to make sure district doesn’t exclude, censor religious content in future school-related student activities

LifeNews: “Today, pro-life legislator in both chambers put forward bills that will ban late term abortions, exclude Ohio from abortion coverage in the new federal health care law and strengthen parental consent rights in Ohio.”

John McCormack writes at the Weekly Standard: “It’s like, you know, she’s still entitled to care without mom knowin’ . . . ” says Woodruff. As shocking as Woodruff’s words may be, they’re actually a concise summary of the New Jersey Supreme Court’s 2004 ruling that invalidated the state’s parental consent law. Despite the court’s decision to enshrine a right to abortion-on-demand for teens, the Planned Parenthood employee is still willing to run afoul of laws against covering up statutory rape and sex trafficking.

One News Now: “One pro-family activist is warning that U.S. judges are seeking supremacy over the branches of government and over the will of the people, but she says Americans can do something about it.”

WDAY.com: “It’s a bill starting to get a lot of attention in the North Dakota legislature: The debate over divorce. A group of North Dakota Republicans wants to require couples wanting to get a divorce wait one year and go through mandatory marriage counseling.”

KCAUTV.com: “Two Sioux Falls women who were legally married in Iowa are petitioning to change their names after the state of South Dakota refused to issue them driver’s licenses in their married names.”

USA Today: “When the prayer breakfast convenes again on Thursday (Feb. 3), they’ll be back, this time charging that some of the evangelical supporters of the prayer breakfast have blood on their hands. Last year’s protests were fueled by a proposed law in Uganda calling for life sentences for people convicted of homosexual activity . . . ”

AZ Capitol Times: “If a state lawmaker has his way, women seeking abortions in Arizona would be required to sign documents saying they’re not terminating a pregnancy because of the fetus’ race or sex.”

Boston Herald: “A Massachusetts anti-abortion group proposed legislation today that would allow individual taxpayers to opt out of paying for publicly-funded abortions in the state.”

ExploreHoward.com: “West County Republican State Sen. Allan Kittleman (District 9) announced Wednesday that he no longer plans to introduce legislation that will allow civil unions for all couples, including same-sex couples, but instead plans to support a gay marriage bill that was introduced in the Senate.”

LifeNews: “Fox 29 indicates Pennsylvania state records it obtained show taxpayers forked over $100,000 in legal bills for attorneys for the state officials the grand jury subpoenaed. The local prosecutors in the case grilled the state officials and they were entitled to legal representation, but chose to accept public attorneys paid for at public expense.”

“When interpreting the scope of federal power, then, you need to decide what you will follow: The original meaning or case precedents. As I read Judge Vinson’s opinion, he mixes the two.”

NCPA Policy Digest: “In 1993, Sweden introduced a system of school vouchers inspired by the ideas of American economists Milton and Rose Friedman. Sweden designed its voucher system to follow the Friedmans’ advice to keep it universal and simple. The answer was a system where funding follows the student regardless of their parents’ income, says Odd Eiken, former state secretary of schools in Sweden.”

Rebecca Hagelin writes at Townhall:  ”To appear nude on TV, for starters. Danny’s mother had a few qualms, apparently, about her son starring in a teen drama rife with explicit sexual scenes, drug abuse and alcohol. But, Danny assured her, it’s just a “job,” and besides, he’s “superstoked” about it. After all, he and his co-stars (some as young as 15) get to inhabit a teen world full of sexual duos and trios, gays and straights, “pill-poppers” and “nymphomaniacs,” with no moral repercussions—or even capable parents—in sight. Sounds like child exploitation to me.”

“Over the past month, several progressive activist blogs have waged an ugly war against Chick-fil-A. The company’s alleged atrocity: One of its independent outlets in Pennsylvania donated some sandwiches and brownies to a marriage seminar run by the Pennsylvania Family Institute, which happens to oppose same-sex marriage.”

Des Moines Register: “This is not a debate about taking rights away from anyone,” said Rep. Greg Forristall, R-Macedonia. “This is a debate about whether a right exists. The Legislature and the Supreme Court disagree, so we’re going to the people to let them decide.”

The problem in society today is not hatred of homosexuals, but hatred by homosexuals of anyone who refuses to say ‘amen’ to their sexual behavior.

Blog of the Legal Times: “The District of Columbia’s judicial nomination commission today recommended to the White House three Washington lawyers who are vying to fill a vacancy on the D.C. Court of Appeals. The commission recommended Corinne Ann Beckwith, Todd Kim and Walter Smith Jr. . . . ”

Blog of the Legal Times: “In a rare public appearance, White House Counsel Robert Bauer pleaded today for senators to allow confirmation votes on more of President Barack Obama’s judicial nominees.”

USA Today: “What the Chinese are very good at doing is achieving short-term goals,” says Jiang Xueqin, deputy principal of Peking University High School, affiliated with Beijing’s Peking University, known as the “Harvard” of China. “They’re good at copying things, not creating them.”

The Hill: “The Tea Party group FreedomWorks is calling on activists to flood the office phones of Sens. Nelson, Tester, Joe Manchin (D-W.Va.), Jim Webb (D-Va.), Bill Nelson (D-Fla.), Bob Casey Jr. (D-Pa.), Claire McCaskill (D-Mo.) and Jeff Bingaman (D-N.M.) to call on them to vote for the repeal amendment.”

Religion Clause Blog: “The Virginia House of Representatives yesterday passed two proposed state constitutional amendments dealing with religion . . . HJ 593 and HJ 614 . . . ”

Religion Clause Blog: “Alliance Defense Fund issued a press release announcing filing of the lawsuit.”

LifeNews: “Indiana Governor Mitch Daniels has promoted a “truce” on abortion and social issues again in a new interview that will surely cause him problems with pro-life voters should he decide to see the Republican nomination for president.”

AP: “After years of watching Muslims portrayed as terrorists in mainstream TV and movies, an advocacy group hopes to change that image by grooming a crop of aspiring Muslim screenwriters who can bring their stories – and perspective – to Hollywood.”

LifeSite News: Defending the law are the Alliance Defense Fund (ADF) attorneys, along with Americans United for Life and ADF-allied attorney Randall Wenger, who submitted a friend-of-the-court brief to the Pennsylvania Supreme Court at the end of December. Backing ADF are the Pennsylvania Family Institute, Pennsylvania Pro-Life Federation, Pennsylvania Catholic Conference, and nearly 70 state legislators who support the law . . . “Parents should have a right to be involved in their child’s critical life-changing decisions, and that includes abortions,” said ADF Legal Counsel Matt Bowman. “Secret abortions performed on minors leave children in the hands of a predatory abortion industry that has put profits above parents’ rights and the health and safety of young girls and their preborn children.”

Charisma (includes photo of David Cortman): Alliance Defense Fund (ADF) attorneys filed a lawsuit Friday against Los Angeles Unified School District officials on behalf of the student. “Christian students shouldn’t be censored at public elementary schools because of their beliefs,” says ADF Senior Counsel David Cortman. “When religious content is censored by a public school while the content of other performances discussing similar topics is allowed, we have a major violation of a student’s constitutional rights.”

Contra Costa Times: Christian attorneys who advocate for religious freedom, filed suit late last week against Los Angeles Unified on behalf of the unidentified boy. “What this boils down to is that our client, like other students, wanted to be allowed to (perform) to a song about love and dancing. Only in his song he talked about his love for Jesus,” said Matt Sharp, a National Alliance attorney working on the case. “The courts have time and time again established that Christian students cannot be discriminated against for wanting to express their religious beliefs at schools.” The lawsuit seeks to overturn whatever school or district policy is prohibiting the boy from performing in the talent show scheduled for Friday. [ADF Media has asked the paper to correct ADF name references]

Media Matters: “The Alliance Defence Fund, a Christian legal group, has given her free legal advice; she is receiving support from the Washington, D.C.-based CRC Public Relations, a conservative PR firm that played a role in the Swift Boat Veterans …

Gazette.net: “The Baltimore case, though, is rather directly on point and should make it clear that the Montgomery County law also is unconstitutional,” said Casey Mattox, an attorney with the Alliance Defense Fund. The Alliance Defense Fund, based in Washington, D.C., specializes in free speech and anti-abortion cases. The organization is representing the pregnancy resource center for free. Mattox said both laws restrict pregnancy centers that do not provide abortions, and both also regulate the centers based on their speech. Both laws, he said, were specifically intended to avoid imposing restrictions on abortion facilities.”That’s viewpoint-based discrimination,” Mattox said, adding that abortion clinics are in need of further regulation.

Yakima-Herald.com: “Banking on free legal help in the event of a lawsuit, the Yakima City Council has taken an important step toward formalizing a policy that protects its practice of public prayer. With little comment, the council agreed Tuesday to adopt a model policy offered by the Alliance Defense Fund, a group of lawyers whose stated goal is to defend freedom of religious expression.”

The Hill: “Senate Democratic leaders said they are prepared to defeat an amendment repealing the healthcare law that Republicans are trying to attach to the Federal Aviation Administration (FAA) authorization bill.”

“Senate Minority Leader Mitch McConnell will force an up-or-down vote on the repeal of healthcare reform on Wednesday, testing the unity of Democrats who had promised the rollback would never see the light of day in their chamber.”

Ellyn Arevalo and Mark Regnerus write at Public Discourse: “The American sex trade–strip clubs, prostitution, and the booming pornography business–feeds on and fuels modern-day slavery.”

Heritage Foundation Morning Bell: “Secretary Chu is right: Oil does sell on a world market. But transportation and other distribution factors do segment oil markets somewhat. In fact, the United States is currently paying about $10 less for a barrel of oil than European and Asian nations are. Why? Because of U.S. access to oil refined from Canadian oil sands. Access to these vast natural resources is a great diversification of our oil supply. But now the Obama Administration is trying to make it harder for American consumers to get Canadian oil.”

Wall Street Journal (full access via Google): “One of the under-appreciated fault lines in the U.S. economy is between the 22 “right-to-work” states and the rest of the country. The former have tended to do much better economically. Now some non-right-to-work states such as Indiana, Wisconsin and Michigan are thinking about joining this club that allows workers to opt-out of union membership.”

AP: “Back when the big health care law was little more than a dream, a prominent figure spoke out against the idea of forcing people to get health insurance. He said that would be like solving homelessness by passing a law making people buy a house.”

Andrea B. Carroll, Reregulating the Baby Market: A Call for a Ban on Payment of Birth-Mother Living Expenses, 59 U. Kan. L. Rev. 285 (2011) About the laudability of a general scheme of domestic adoption, few would disagree. Adoption provides …

Richard H. Fallon, Jr., Are Originalist Constitutional Theories Principled, or Are They Rationalizations for Conservativism, 34 Harv. J.L. & Pub. Pol’y 5

My topic is whether originalism, and in particular the form of originalism that might be thought to constitute Originalism 2.0, is “a rationalization for conservatism, or a principled theory of interpretation.” [FN1] This question includes at least three parts: First, what is originalism? Second, are particular varieties of originalism capable of being, or likely to be, applied in a principled way? Third, are most or all varieties of originalism “rationalization[s] for conservatism”?
My answer to the first of these questions frames my answers to the second and third. Although it is customary to speak of originalism as a single constitutional theory, even a cursory review of recent scholarship reveals that the range of originalist theories has grown startlingly broad and diverse and is becoming more so all the time. [FN2] So great are the differences among originalist theories that I question the premise that we can talk meaningfully about Originalism 2.0 and whether it is a principled theory or a rationalization for conservatism. It would be more accurate to say that there are multitudinous rivals for the *6 title of Originalism 2.0 and that whether these competitors are principled can only be answered on a theory-by-theory basis.

When assessment proceeds accordingly, a striking feature of many originalists’ theories is their vagueness or indeterminacy. The vagueness of many originalist theories bears vitally on the second question, involving whether originalist theories are likely to be applied in a principled way. As a generalization, versions of originalism that are not well specified allow more opportunities for ideologically motivated manipulation to achieve conservative results than would more fully specified versions. By itself, this conclusion is hardly surprising. What may be less obvious is that originalist theories that are rigorously defined in advance, thus to avoid case-by-case inconsistencies in application, may be more prone to generate disturbing or even calamitous results than are originalist theories that leave more room for discretionary judgment. Originalists may therefore have good reason not to want to bind themselves too rigidly to a methodological mast.

With regard to the third question, however, the more methodological discretion that originalist theories authorize, and the more that practitioners of those theories exercise their discretionary judgment to justify substantively conservative conclusions, the better the charge that originalist theories are “rationalization[s] for conservatism” appears to fit. Suspicions of rationalization are also in order insofar as originalists maintain that the case for adopting an originalist theory is entirely independent of the theory’s conservative valence. [FN3]

John O. McGinnis, Michael B. Rappaport, Originalism, Precedent, and Judicial Restraint, 34 Harv. J.L. & Pub. Pol’y 121 (Winter 2011)

Although originalism has grown in popularity in recent years, the theory continues to face major criticisms. One such criticism is that originalism cannot accommodate precedent. This criticism takes two forms. First, some critics, as well as some advocates of originalism, argue that originalism is inconsistent with precedent and therefore originalist judges must overturn all precedents that conflict with the Constitution’s original meaning. [FN1]

If these scholars are correct, however, originalism becomes far less attractive because it would obligate judges to make a number of radical and unpopular decisions. For example, depending on one’s reading of the Constitution’s original meaning, an originalist might be required to declare paper money unconstitutional or to reverse Brown v. Board of Education. [FN2]
Second, even if originalists do follow precedent on pragmatic grounds, critics argue that this approach undermines originalism and its distinctive virtues. If judges can simply decide which precedents they want to follow, then originalism is little better than an unprincipled nonoriginalism.

This short Essay, which is based on a longer article, [FN3] responds to each of these precedent-based challenges to *122 originalism. First, we argue that there is no fundamental conflict between originalism and precedent. The original meaning of the Constitution allows for precedent because it treats precedent as a matter of federal common law that Congress can override by statute. [FN4]

Second, we argue that one can articulate a principled doctrine of precedent that is compatible with originalism and that preserves the most important benefits of both originalism and precedent. Our normative approach is consequentialist. A normatively desirable doctrine of precedent would follow precedent when the benefits of doing so are greater than the benefits of returning to the original meaning and would follow the original meaning in the reverse situation. [FN5]
Turning to this task, we begin by identifying the principal benefits of following the original meaning and the principal benefits of following precedent. [FN6] We then recommend a few precedent rules. [FN7] Our theory recommends an intermediate approach to precedent, sometimes following it and sometimes not. Although this theory is less respectful of precedent than the Supreme Court’s existing approach, [FN8] it would avoid the problems created by the wholesale rejection of nonoriginalist precedents while leaving a significant role for originalism in constitutional interpretation.

Juliana Vines Crist, The Myth of Fetal Personhood: Reconciling Roe and Fetal Homicide Laws, 60 Case W. Res. L. Rev. 851 (2010)