Tag Archives: Court: 1st Circuit

Religion Clause Blog: In a long-running free-exercise/ free-speech case, in March a the federal district court in Puerto Rico, on remand from the 1st Circuit, ordered neighborhood homeowners’ associations (urbanizations) that allow entry into the neighborhood only through an unmanned locked gate operated by a key, access code or beeper to provide Jehovah’s Witnesses who wish to proselytize in the neighborhood access equal to that of residents.

Lund v. City of Fall River, No. 12-1758 (1st Cir. April 22, 2013)

Blog of the Legal Times: The Senate confirmed William Kayatta Jr. of Maine to the U.S. Court of Appeals for the First Circuit on Wednesday, making him the first new circuit judge to take the bench since June and the first federal judge confirmed during this session of Congress.

Blog of the Legal Times: Those nominees – Richard Taranto for the U.S. Court of Appeals for the Federal Circuit, Robert Bacharach for the Tenth Circuit and William Kayatta Jr. for the First Circuit – all had their nominations languish in the full Senate, never getting a confirmation vote for months. To continue to be considered, the White House had to renominate them this session.

Findlaw: The First Circuit Court of Appeals rejected a third challenge to the Massachusetts abortion clinic buffer zone law this week, calling the plaintiffs’ First Amendment claims a “salmagundi of arguments, old and new.” The statute at the center of the dispute is Mass. Gen. Law ch. 266, § 120E 1/2, which states that “no person shall knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility” (RHCF) within a designated and clearly marked buffer zone.

Washington Post: The group’s lawyers wrote that Congress did not invent the meanings of “marriage” and “spouse” when it enacted the law but “merely reaffirmed what Congress has always meant — and what courts and the Executive Branch have always understood it to mean — in using those words: A traditional male-female couple.”

SCOTUS Blog: The Obama Administration notified the Supreme Court Friday afternoon that it will shortly file two more requests — in cases from New England and New York — for the Justices to rule on the constitutionality of the federal Defense of Marriage Act (DOMA).

Carl Tobias at The Hill: In June, the Senate GOP leadership proclaimed that it would invoke the “Thurmond Rule” and oppose appointment of each appeals court nominee recommended by President Barack Obama until after the November election. This decision threatens the confirmation of William Kayatta, the excellent, noncontroversial nominee whom Obama selected after First Circuit Judge Kermit Lipez took senior status in late 2011.

Press Herald: Kayatta was nominated by President Obama for a judgeship on the 1st Circuit Court of Appeals back in January and was endorsed by the Senate Judiciary Committee three months later. Maine’s two Republican senators, Susan Collins and Olympia Snowe, have strongly endorsed him.

Boston Globe: Attorney General Martha Coakley has asked the nation’s highest court to uphold a landmark ruling by a Boston appeals court that struck down a portion of the federal Defense of Marriage Act, which, she argues, discriminates against same-sex couples by defining marriage solely as the union of a man and a woman.

Jordan Lorence on The Think Tank with Garland Robinette to discuss. | MP3 audio 7:43 mins

Christian Post: “The President is supposed to defend federal laws, and lapsing from that duty could come back to haunt those who support the President’s actions with DOMA – the Department of Justice is part of the Executive branch and is supposed to defend federal laws,” added Alliance Defense Fund Senior Counsel Jordan Lorence.

Ken Klukowski at Breitbart: The Alliance Defend Fund (ADF) is a Christian legal organization which is centrally involved in protecting traditional marriage in the federal courts. ADF’s lead counsel in the DOMA litigation, Dale Schowengerdt, noted that there is no legal principle on which courts can legalize same-sex marriage without also legalizing polygamy, and that the First Circuit’s decision is no exception. “Under this rationale, if just one state decided to accept polygamy, the federal government and perhaps other states would be forced to accept it, too. The federal government had the right to step in against polygamy at one time in our nation’s history [which the Supreme Court upheld in 1878], and it has the right to step in against this attempt at marriage redefinition as well.”

KASU 91.9 FM (includes audio): The ruling won’t go into effect until it can be appealed, most likely to the U.S. Supreme Court. Which will certainly happen, says Dale Showengert, an attorney at the conservative Alliance Defense Fund. He says the legislatures in the states and Congress are the ones to decide what a legal marriage looks like. DALE SHOWENGERT: Marriage is a particularly important social institution, and so any watershed change in its definition should come through the legislative process and not the courts.

Michael Foust at Baptist Press: Baptist Press asked Dale Schowengerdt, legal counsel for the Alliance Defense Fund, to answer some legal questions about the case. Following is a partial transcript . . .

David Gibson at the Christian Century: “Under this rationale, if just one state decided to accept polygamy, the federal government and perhaps other states would be forced to accept it, too,” said Dale Schowengerdt, legal counsel for the Alliance Defense Fund. “The federal government had the authority to step in against polygamy at one time in our nation’s history, and it has the authority to step in against this attempt at marriage redefinition as well.”

Dale Schowengerdt appeared on the The Victoria Taft Show to discuss the issue. | MP3 audio 8:09 mins

Jordan Lorence on the Hugh Hewitt Show a couple of weeks ago to survey the landscape. | MP3 audio 5:26 mins

AP on Findlaw: Fresh from a favorable ruling by a federal appeals court, Dorene Bowe-Shulman can’t wait for the U.S. Supreme Court to weigh in on whether same-sex married couples should get the same federal benefits as heterosexual couples.

Richard Viguerie at Conservative HQ: Dale Schowengerdt, a lawyer for the Alliance Defense Fund — a Christian advocacy group that has defended California’s gay marriage ban in court — noted that, “Under this [the court’s] rationale, if just one state decided to accept polygamy, the federal government and perhaps other states would be forced to accept it, too.”

The New American: The ADF’s Dale Schowengerdt argued that Wilken’s reasoning was outrageous. “To say that a law that was passed overwhelmingly by Congress is the product of animus is — I don’t know how to say it — it’s unbelievable,” Schowengerdt was quoted by the Christian Science Monitor as saying. “It’s just unbelievable that a judge would be making that sort of value judgment against the entire government, the Congress, and President Bill Clinton.” Brian Camenker of the Massachusetts-based pro-family group Mass Resistance reacted to the most recent court rulings, saying that “federal judges just seem so … out of touch with reality [and] completely disjointed from the Constitution and the rule of law.” Bill Duncan of the Marriage Law Foundation added that “the best way to say it is: These judges are substituting their judgment about what’s good public policy, because they want to see same-sex marriage mandated on the country.”

MinnPost (Christian Science Monitor): A powerful affirmation, or a bridge too far? Gay rights advocates praised the decision, while those supporting the traditional definition of marriage denounced it. “Society should protect and strengthen marriage, not undermine it,” said Dale Schowengerdt, a lawyer with the Alliance Defense Fund. “In allowing one state to hold the federal government and potentially other states hostage to redefine marriage, the First Circuit attempts a bridge too far,” he said.

Huffington Post (RNS): Still, social conservatives saw the decision as an ominous sign. “Under this rationale, if just one state decided to accept polygamy, the federal government and perhaps other states would be forced to accept it, too,” said Dale Schowengerdt, legal counsel for the Alliance Defense Fund. “The federal government had the authority to step in against polygamy at one time in our nation’s history, and it has the authority to step in against this attempt at marriage redefinition as well.”

ABC: Society should protect and strengthen marriage, not undermine it,” said Alliance Defense Fund Legal Counsel Dale Schowengerdt. “In allowing one state to hold the federal government, and potentially other states, hostage to redefine marriage, the 1st Circuit attempts a bridge too far. Under this rationale, if just one state decided to accept polygamy, the federal government and perhaps other states would be forced to accept it, too.”

The Sun Chronicle: Conservatives said they hoped the U.S. Supreme Court would overturn the appeals court and find the law constitutional. “Society should protect and strengthen marriage, not undermine it. The federal Defense of Marriage Act provides that type of protection, and we trust the U.S. Supreme Court will reverse the 1st Circuit’s erroneous decision,” said Dale Schowengerdt of the Alliance Defense Fund.

Florida Baptist Witness (Baptist Press): Dale Schowengerdt, legal counsel for the Alliance Defense Fund, said society should protect and strengthen traditional marriage rather than undermine it. ADF, a Christian legal group, has worked to defend DOMA. “The federal Defense of Marriage Act provides that type of protection, and we trust the U.S. Supreme Court will reverse the First Circuit’s erroneous decision,” Schowengerdt said in a statement. [more]

Washington Times: But Dale Schowengerdt, an attorney for Alliance Defense Fund, one of dozens of groups defending DOMA, said that in “allowing one state to hold the federal government, and potentially other states, hostage to redefine marriage, the 1st Circuit attempts a bridge too far.” “The federal government had the authority to step in against polygamy at one time in our nation’s history, and it has the authority to step in against this attempt at marriage redefinition as well,” Mr. Schowengerdt said. DOMA protects marriage “and we trust the U.S. Supreme Court will reverse the 1st Circuit’s erroneous decision.”

CNA: Dale Showengert, legal counsel for the Alliance Defense Fund, also criticized the decision. “Society should protect and strengthen marriage, not undermine it,” he said May 31. “The federal Defense of Marriage Act provides that type of protection, and we trust the U.S. Supreme Court will reverse the 1st Circuit’s erroneous decision.”

Babble.com: An opponent of the law and representative of the Alliance Defense Fund, Dale Schowengerdt, said that “society should protect and strengthen marriage, not undermine it.”

Reuters: Dale Schowengerdt, a lawyer for the Alliance Defense Fund, a Christian advocacy group that has defended California’s gay marriage ban in court, added, “Under this rationale, if just one state decided to accept polygamy, the federal government and perhaps other states would be forced to accept it, too.”

Digital Journal: “Society should protect and strengthen marriage, not undermine it.” said Dale Schowengerdt, counsel for the Alliance Defense Fund, a group of Christian lawyers. He said the ruling allowed one state (Massachusetts in this case) to hold the federal government and potentially other states “hostage.” Schowengerdt said that “under this rationale, if just one state decided to accept polygamy, the federal government and perhaps other states would be forced to accept it too.”

USA Today: The Alliance Defense Fund, a group of Christian lawyers who support the federal law, said it expects the Supreme Court will reverse the appeals panel and uphold the law’s constitutionality. “Society should protect and strengthen marriage, not undermine it,” said Dale Schowengerdt, legal counsel for the fund. Schowengerdt said that under the appeals court’s rationale, “if just one state decided to accept polygamy, the federal government and perhaps other states would be forced to accept it, too.”

Christian Post: Opposing the ruling, Alliance Defense Fund Legal Counsel Dale Schowengerdt said the court went too far in its rationale. “In allowing one state to hold the federal government, and potentially other states, hostage to redefine marriage, the 1st Circuit attempts a bridge too far. Under this rationale, if just one state decided to accept polygamy, the federal government and perhaps other states would be forced to accept it, too,” he contended.

Wall Street Journal: “The federal government had the right to step in against polygamy at one time in our nation’s history,” said Dale Schowengerdt of the Alliance Defense Fund, which opposes gay marriage, “and it has the right to step in against this attempt at marriage redefinition as well.”

LifeSiteNews: Alliance Defense Fund Legal Counsel Dale Schowengerdt said the “federal government had the authority to step in against polygamy at one time in our nation’s history, and it has the authority to step in against this attempt at marriage redefinition, as well.”

“In allowing one state to hold the federal government, and potentially other states, hostage to redefine marriage, the 1st Circuit attempts a bridge too far. Under this rationale, if just one state decided to accept polygamy, the federal government and perhaps other states would be forced to accept it, too. The federal government had the authority to step in against polygamy at one time in our nation’s history, and it has the authority to step in against this attempt at marriage redefinition as well.”

AP: The 1st U.S. Circuit Court of Appeals in Boston said the Defense of Marriage Act, which defines marriage as a union between a man and a woman, discriminates against married same-sex couples by denying them federal benefits

Liberty Counsel: This ruling makes no sense. A state cannot dictate the kind of benefits the federal government must provide,” said Mat Staver, Founder and Chairman of Liberty Counsel. “If a state recognizes polygamy, does that mean that the federal government must also recognize multiple spouses? Absolutely not! This decision is the proverbial tail wagging the dog.”

Boston Globe: “Society should protect and strengthen marriage, not undermine it. The federal Defense of Marriage Act provides that type of protection, and we trust the U.S. Supreme Court will reverse the 1st Circuit’s erroneous decision.” “In allowing one state to hold the federal government, and potentially other states, hostage to redefine marriage, the 1st Circuit attempts a bridge too far. Under this rationale, if just one state decided to accept polygamy, the federal government and perhaps other states would be forced to accept it, too. The federal government had the right to step in against polygamy at one time in our nation’s history, and it has the right to step in against this attempt at marriage redefinition as well.” — Dale Schowengerdt, legal counsel for the Alliance Defense Fund, an alliance of Christian attorneys

NY Times: “Society should protect and strengthen marriage, not undermine it,” said Dale Schowengerdt, counsel for the Alliance Defense Fund, a group of Christian lawyers. “In allowing one state to hold the federal government, and potentially other states, hostage to redefine marriage, the First Circuit attempts a bridge too far,” he said. “Under this rationale, if just one state decided to accept polygamy, the federal government and perhaps other states would be forced to accept it, too.”

Portland Press Herald: The trial lawyer from Cape Elizabeth wins strong support as his 1st Circuit nomination heads toward a final floor vote.

AP: A legal battle over a law that denies federal benefits to married gay couples is headed to a federal appeals court in Massachusetts, the first state in the nation to legalize gay marriage.

The Portland Press Herald: A Senate panel quizzes Portland attorney William Kayatta Jr., Obama’s choice for an appeals court seat.

National Organization for Marriage v. McKee, No. 11-1196 (1st Cir. Jan. 31, 2012)

LIPEZ, Circuit Judge. This appeal presents the second chapter of a lawsuit challenging the constitutionality of Maine laws imposing registration and disclosure requirements on entities that finance election-related advocacy. In a recent decision, we rejected claims made by one of the appellants here, the National Organization for Marriage (“NOM”), asserting that Maine’s laws regulating political action committees (“PACs”) are unconstitutionally vague and overbroad in violation of the First and Fourteenth Amendments. See NOM v. McKee, 649 F.3d 34 (1st Cir. 2011) (“NOM I”). We now consider similar contentions raised by NOM and co-appellant American Principles in Action, Inc. (“APIA”) concerning the law applicable to ballot question committees (“BQCs”). See Me. Rev. Stat. Ann. tit. 21-A, § 1056-B. Our decision in NOM I effectively disposes of most of appellants’ challenges to Maine’s BQC requirements. On the only substantively distinct issue — the constitutionality of the definition of “contribution” in section 1056-B — we conclude that the BQC law, like the PAC laws, is constitutional. We thus affirm in its entirety the district court’s grant of summary judgment for the defendants.

The Portland Press Herald / Maine Sunday Telegram: President Obama has nominated William Kayatta Jr. of Cape Elizabeth to fill Maine’s seat on the U.S. 1st Circuit Court of Appeals, the White House announced today.

The Portland Press Herald / Maine Sunday Telegram: In spite of being given two names, President Obama has yet to nominate a replacement for Judge Kermit Lipez on the 1st Circuit Court of Appeals.

The Portland Press Herald / Maine Sunday Telegram: U.S. Reps. Mike Michaud and Chellie Pingree are recommending that President Obama nominate a Maine Supreme Judicial Court justice or a Portland lawyer to fill Maine’s sole seat on the 1st Circuit Court of Appeals.

The Republic: “Lawyers for the National Organization for Marriage filed their notice of appeal with the 1st U.S. Circuit Court of Appeals in Boston, which already is considering another constitutional challenge of Maine’s campaign finance law by the Virginia-based organization.”

Christian Post: “On Thursday, former state-Supreme-Court-judge-turned-religious-freedom-advocate Roy Moore filed an amicus curiae brief in the U.S. Court of Appeals for the First Circuit defending the constitutionality of DOMA . . . Several other conservative groups have also criticized DOJ for not fully defending DOMA. Alliance Defense Fund Legal Counsel [Dale Schowengerdt] criticized the DOJ’s defense as ‘deficient.’”

ChristianNewsWire: “Roy Moore, former Alabama Supreme Court Chief Justice, and theFoundation for Moral Law, a religious liberties legal organization in Montgomery, Alabama, filed an amicus curiae brief in the U.S. Court of Appeals for the 1st Circuit today defending the constitutionality of the federal Defense of Marriage Act (DOMA), passed by Congress in 1996. Read the Foundation’s brief in Massachusetts v. U.S. Dept. of Health and Human Services.”

Pacific Justice Institute: “The federal Defense of Marriage Act (DOMA) is heading to the First Circuit Court of Appeals. In two separate cases, one brought by same-sex couples married in Massachusetts and the other by the Commonwealth of Massachusetts, a judge struck down a challenged section of the law which defines marriage for the purpose of interpreting federal statutes, regulations and administrative bureaus whenever the word ‘marriage’ or ‘spouse’ is used.”

LifeSiteNews: “Pro-family advocates are urging a federal appeals court to overturn a federal judge’s ruling that struck down the federal Defense of Marriage Act as unconstitutional. They have also criticized the Obama Justice Department’s defense of DOMA as inadequate and a deliberate recipe for failure.”

FRC Press Release: “Family Research Council and the Thomas More Society yesterday submitted an amicus curiae (‘friend of the Court’) brief in a lawsuit brought by advocates of same-sex ‘marriage.’ The brief was filed in the U.S. Court of Appeals for the First Circuit in Boston, and it urges the Court to reverse a July 2010 decision by Judge Joseph Tauro that struck down the federal definition of marriage contained in the Defense of Marriage Act (DOMA).”

ADF attorney David Cortman appeared on the Janet Mefferd Show to discuss this: 1st Circuit turns away attack on Pledge of Allegiance. | MP3 19:17 mins

ADF Attorney David Cortman appeared on the Mike Gallagher Show to discuss: 1st Circuit turns away attack on Pledge of Allegiance | MP3 audio runs 8:01 mins

WorldNetDaily: “Supporting the Pledge in the court battle was The National Legal Foundation, the Foundation for Moral Law, the Alliance Defense Fund and the American Center for Law & Justice, which filed a brief on behalf of 42 members of the 111th Congress and more than 80,000 Americans who signed on to the ACLJ’s Committee to Protect ‘Under God.’”

Alliance Defense Fund attorneys filed a friend-of-the-court brief with the court in April that argued that the historical practice of reciting the phrase as part of the Pledge in no way violates the U.S. Constitution.

ACLJ: “The American Center for Law and Justice (ACLJ) said today a federal appeals court decision upholding the constitutionality of the Pledge of Allegiance – including the phrase ‘under God’ – in New Hampshire schools, represents a significant and sound decision that sends a message: patriotic, time-honored traditions should be embraced – not targeted for extinction – in our public schools. The ACLJ represented more than 40 members of Congress and more than 80,000 Americans in filing its amicus brief in this case and urged the appeals court to conclude that the Pledge did not violate the First Amendment.”

Freedom From Religion Foundation, et al. v. Hanover School District, et al., No. 09-2473 (1st Cir. Nov. 12, 2010)

“We hold that the New Hampshire School Patriot Act and the voluntary, teacher-led recitation of the Pledge by the state’s public school students do not violate the Constitution.”

Law.com: “Does the Family and Medical Leave Act (FMLA) permit caregivers to accompany sick family members who travel seeking spiritual healing? That was one of two issues before the U.S. Court of Appeals for the 1st Circuit on Nov. 4. The other was whether the employee filed adequate certification supporting her leave request. Chief Judge Sandra Lynch and Judges Michael Boudin and Jeffrey Howard heard oral argument in Tayag v. Lahey Clinic Hospital Inc., an appeal of a January 2010 summary judgment ruling for the employer issued by Judge Patti Saris of the District of Massachusetts.”

Law.com: “On Oct. 4, a day of heightened concerns about international terrorism, the 1st U.S. Circuit Court of Appeals heard a multipronged appeal concerning three men charged with giving false information to the Internal Revenue Service about a charity allegedly connected to jihadist fighters and the mujahedeen.”

Wall Street Journal Law Blog: “[Newdow's] pledge battle is continuing in a different forum, this time at the First Circuit in Boston. On Thursday, the court heard arguments over whether a New Hampshire statute that requires school districts to provide time for the pledge violates the Establishment Clause. Click here for Sheri Qualters’s story in the National Law Journal . . . According to Qualters, the hearing focused largely on whether the ‘under God’ phrase is religious or simply refers to the political philosophy holding that Americans have inalienable rights.”

Law.com: “The 1st U.S. Circuit Court of Appeals heard arguments on Thursday about whether a New Hampshire statute that requires school districts to provide time for public elementary students to recite the Pledge of Allegiance on a voluntary basis is constitutional. The panel hearing Freedom From Religion Foundation v. U.S. focused largely on whether the ‘under God’ phrase is religious or a nod to the political philosophy holding that Americans have inalienable rights.”

“The 1st Circuit has stayed a lower court’s order compelling the National Organization for Marriage to reveal the identity of donors in the Maine marriage battle.”

“If you’re a student in New Hampshire’s public schools, you will not be allowed to recite the Pledge of Allegiance with the words ‘under God’ if the Freedom From Religion Foundation has its way in an appeal being heard at the U.S. Court of Appeals for the 1st Circuit.”

The Providence Journal: “The Senate Judiciary Committee has held over until the new year a vote on President Obama’s nomination of Rhode Island Superior Superior Court Judge O. Rogeriee Thompson to a vacant seat on the Boston-based First Circuit U.S. Circuit Court of Appeals.”

LifeNews.com: “In McCullen v. Coakley, the [The Life Legal Defense Foundation] is challenging the constitutionality of a 2007 law making it a crime to “enter or remain” on public sidewalks within 35 feet of abortion facilities . . . Attorneys with the Alliance Defense Fund filed a lawsuit in federal court in January 2008 saying the law essentially eliminates free speech rights within the zone by restricting pro-life advocates from sharing their message with people entering.”

The Providence Journal: “The U.S. Senate Judiciary Committee will consider President Obama’s nomination of Rhode Island Superior Court Judge O. Rogeriee Thompson to the 1st U.S. Circuit Court of Appeals on Tuesday.”

Boston Globe (AP): “Judge Denny Chin, a district court judge for the Southern District of New York, and Rhode Island Superior Court Justice O. Rogeriee Thompson were tapped for positions. If confirmed by the Senate, Chin would serve as a judge in the 2nd Circuit, based in New York, and Thompson would serve in the Boston-based 1st Circuit.”

Law.com: “The U.S. Court of Appeals for the 1st Circuit has upheld a lower court ruling requiring Massachusetts prison officials to allow two Muslim inmates access to televised prayer services. The court’s Aug. 24 ruling expanded the circuit’s sparse case law on the Religious Land Use and Institutionalized Persons Act (RLUIPA), a federal law passed in 2000 to strengthen the right of religious expression for prisoners and in land-use planning.”

“The modified version of the statute replaced the floating buffer zone with a 35-foot fixed buffer zone.”

Courthouse News Service: “A Lithuanian woman’s fear that she or her daughter would be abducted and forced into prostitution does entitle them to asylum in the United States, the 1st Circuit ruled.” The opinion is here.

Suffolk University Law Review: “The First Amendment protects the free exercise of religion, while the Fourteenth Amendment protects, among other rights, parents’ rights to direct the upbringing of their children. In Parker v. Hurley, two families claimed that their children’s public school violated the parents’ and children’s First and Fourteenth Amendment rights by using books depicting gay couples and by refusing to allow the parents to exempt their children from discussion of the books. In affirming the district court’s dismissal of the parents’ complaint, the First Circuit correctly held that the parents’ and children’s claims were constitutionally insignificant because the school’s policy did not burden either their free exercise or substantive due process rights. The court’s reasoning, however, focused too much on the young age of the students instead of relying solely on First Circuit precedent. By doing so, the court cast doubt on what appeared to be controlling First Circuit precedent.”

Providence Journal:
“Rhode Island’s first black female state judge and a prominent Providence lawyer who took on tobacco and lead-paint companies have been recommended for the federal bench by Senators Jack Reed and Sheldon Whitehouse.”

“Chadwick claims she was passed over for a promotion in favor of a less-qualified colleague without children.”