Friends, The new Alliance Alert Daily Digest is finally here! You can subscribe to the daily e-mail here: Subscribe to our mailing list * indicates required Email Address * First Name * Last Name *
The New American: David Cortman, senior legal counsel with the Alliance Defense Fund (ADF), the legal advocacy group representing Moffett and the charter school, told the Idaho Press-Tribune in an e-mail that he is prepared to appeal the case to the Supreme Court. “In our opinion, the court failed to perform any meaningful analysis of any issue in the case,” Cortman wrote, “including the seminal one: whether there is any educational purpose to ban all religious documents from objective teaching….” In addition, he charged, the 9th Circuit panel ignored the right of local school districts to choose their own texts and curricula. “Censoring books, including religious books, is not the proper way to educate children,” Cortman said in an ADF statement, adding: The court’s opinion requiring the removal of religious books to comply with the so-called “separation of church and state” conflicts with established U.S. Supreme Court precedent stating that “the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like.”
Christianity Today: But Jordan Lorence, senior counsel at the Alliance Defense Fund and a lawyer who argued for the Christian groups, said the intent of SDSU’s policy is irrelevant. “If there is an official policy that violates the First Amendment rights of Christian organizations, it’s unconstitutional,” he said. “Intent does not exonerate the policy because the First Amendment violations remain.”
SignOnSanDiego.com: A lawyer for the Christian groups said he was disappointed with the decision. “The court upheld a policy that clearly treats Christian groups worse than other groups on campus,” attorney Jordan Lorence said.
San Francisco Chronicle: The Christian groups’ lawyer, Jordan Lorence of the Alliance Defense Fund, said he may ask the Supreme Court to take up the case. “A vegan group can exclude meat-eaters, and anti-death penalty groups can exclude people who don’t support their cause” while receiving campus funding and other benefits, like access to meeting rooms, Lorence said. He said the school policy relegates religious groups to second-class status.’ | Alpha Delta Chi-Delta Chapter v. Reed, No. 09-55299
Byron Babione at Townhall: In a great victory for religious liberty and equal treatment under the law, the U.S. Court of Appeals for the Ninth Circuit has overturned a federal district court’s ruling which barred Centro Familiar Cristiano Buenos Nuevas Christian Church from occupying and holding worship services in its own building in downtown Yuma, Ariz.
SCOTUSblog: Giving the Obama Administration less than what it requested, the Ninth Circuit Court puts back into effect the “don’t ask/don’t tell” policy, but bars any discharges of gays and lesbians for violating the policy.
Blog of the Legal Times: The June ruling by three judges of the U.S. Court of Appeals for the 9th Circuit limited Renzi’s ability to invoke the Constitution’s “speech or debate” clause, which says lawmakers “shall not be questioned” outside the House or Senate for their legislative activity.
The Ninth Circuit Court on Friday evening put back into effect temporarily the U.S. military’s ban on gays and lesbians from serving openly in the services, but also barred any investigations, penalties or discharges of anyone to carry out that policy.
Pacific Justice Institute: The PJI suit challenges the constitutionality of the individual mandate in the new law, which requires that nearly all Americans to buy health insurance, whether they want it or not. The Ninth Circuit is currently weighing whether to allow the suit to go forward.
Sonoran Alliance: Attorneys for Center for Arizona Policy and the Alliance Defense Fund worked together to defend the church’s rights in court. “Churches should not be treated unfavorably just because they are religious, and that is what the city of Yuma had done here,” said CAP Legal Counsel Deborah Sheasby. (linked at Tucson Citizen)
Courthouse News Service: Judges Johnnie Rawlinson and William Fletcher seemed skeptical of Cortman’s First Amendment claims. “How do you have a First Amendment argument if, in fact, it’s the government’s speech that’s being regulated?” Rawlinson asked. Cortman replied that it was the speech of a local school district, but Rawlinson countered that the school has to comply with the governing body . . . Cortman claimed in his rebuttal that the Charter School Commission has no authority to impose the ban on religious works and only the State Board of Education can decide curriculum. He also claimed that the school was shut down in retaliation for opposing the book-ban policy.
Pacific Justice Institute: The federal Ninth Circuit Court of Appeals has announced that it will hear a constitutional challenge to the controversial “individual mandate” in President Obama’s health care overhaul
Religion Clause: In McCollum v. California Department of Corrections and Rehabilitation, (9th Cir., June 1, 2011), the U.S. 9th Circuit Court of Appeals rejected claims by a volunteer Wiccan chaplain in the California prison system that he should have been considered for one of the paid chaplaincy positions that now are given to Protestant, Catholic, Jewish, Muslim and Native American clergy.
Washington Times: Goodwin Liu, a polarizing Obama administration judicial candidate, has asked the president to withdraw his nomination from consideration for an appeals court judgeship after his bid was blocked last week in the Senate by a Republican filibuster.
Byron York at Townhall: It wasn’t just Liu’s legal positions that did him in. Republicans were particularly rankled by the professor’s testimony during the 2006 confirmation hearings of Supreme Court Justice Samuel Alito.
FRC Action: Family Research Council Action (FRC Action) President Tony Perkins praised the U.S. Senate today for rejecting the nomination of Goodwin Liu to the 9th Circuit Court of Appeals.
LifeNews: Yesterday, the White House announced Obama has named Justice Morgan Christen to the 9th Circuit U.S. Court of Appeals.
Here’s a quick stab at some key points, distilled from the selected repository of my extensive documentation of the case against the controversial nomination of Berkeley law professor Goodwin Liu to the Ninth Circuit . . .
LifeNews: Senate Majority Leader Harry Reid is expected to file cloture sometime today on the nomination of Goodwin Liu to be a Circuit Judge for the Ninth Circuit. Liu is one of many pro-abortion activists Obama has named to lower federal court positions.
Religion Clause Blog: In Freedom from Religion Foundation v. Geithner, the U.S. 9th Circuit Court of Appeals agreed with a federal district court that Pastor Michael Rodgers, a Sacramento area clergyman, has not shown he is entitled to intervene as of right as a defendant in a challenge to the constitutionality of provisions in the federal and California tax codes that allow clergy to exclude from income the parsonage allowance furnished to them.
Religion Clause Blog: In Florer v. Congregation Pidyon Shevuyim, (9th Cir., April 15, 2011), the U.S. 9th Circuit Court of Appeals held that a Jewish organization that contracted with the Washington State Department of Corrections to furnish Jewish chaplains for prisoners was not a “state actor” . . .
Eugene Volokh writes at the Volokh Conspiracy: “The Ninth Circuit has just refused to rehear en banc the panel decision striking down the Stolen Valor Act; the opinions are here. I look forward to reading them shortly, but in the meantime I thought I’d note them for our readers. My post on the panel decision is here.”
CNSNews: “A federal appeals court unanimously reinstated a lawsuit Tuesday filed by a Muslim woman who accused Southern California jailers of violating her religious freedom when they ordered her to take off her head scarf in a courthouse holding cell.”
Washington Post: “The brilliant professor, who turned just 40 in October, testified that he would not allow his academic musings to interfere with the duties of a lower-court judge to follow precedent. He should be confirmed and given the opportunity to demonstrate that he can do that.”
Politico: “Liu, 39, has captured the hopes of liberals who see him as one of Obama’s few bold judicial picks, someone with the intellect and youth for the circuit court bench, a traditional stepping stone to the Supreme Court. But Republicans have argued that he lacks any judicial experience, his legal writings are proof of his intention to legislate from the bench, and his criticism of Supreme Court Judge Samuel Alito after he was nominated to the court revealed an inexperienced social activist who has no place on a federal bench.”
Ed Whelan writes at National Review Online: “It’s an odd thing: On the one hand, many folks on the Left (and many other supporters of same-sex marriage) maintain that only an irrational bigot could fail to accept the (absurd) proposition that the Constitution is properly interpreted as conferring a right to same-sex marriage. On the other hand, these same folks engage in extraordinary gymnastics to deny the concrete evidence that various of Obama’s judicial nominees favor invention of a federal constitutional right to same-sex marriage.”
Public Information Office for the Ninth Circuit: “The Hon. Cynthia Holcomb Hall, a distinguished senior judge of the United States Court of Appeals for the Ninth Circuit, died Saturday, February 26, 2011, after a long and valiant battle with cancer. She was 82.”
Blog of the Legal Times: “The Senate Judiciary Committee gave notice today that it will hold a second confirmation hearing for Liu . . . Obama nominated Liu a year ago to the U.S. Court of Appeals for the 9th Circuit.”
Ninth Circuit Public Information Office: “The Hon. David R. Thompson of San Diego, an esteemed senior judge of the United States Court of Appeals for the Ninth Circuit, died Saturday, February 19, 2011, after a sudden illness. He was 80.”
One News Now: Both sides have presented their appeal in the case involving Capistrano High School student Chad Farnan, who sued his history teacher, Dr. Corbett, in April 2008 for attacking Christianity during his lectures and for calling creationism “superstitious nonsense.”
Religion Clause Blog: “In International Church of the Foursquare Gospel v. City of San Leandro, (9th Cir., Feb. 15, 2011), the U.S. 9th Circuit Court of Appeals reversed the district court and held that a city’s zoning decision made under a neutral, generally applicable zoning law can impose a “substantial burden” on a church’s exercise of religion under RLUIPA.”
“The federal Ninth Circuit Court of Appeals today ruled that the city of San Leandro illegally discriminated against a church by not allowing it to use its own property for worship services. The church, Faith Fellowship Foursquare Church, is represented by staff attorneys with Pacific Justice Institute.”
Religion Clause Blog: “The U.S. 9th Circuit Court of appeals yesterday heard oral arguments (recording of full arguments) in in C.F. v. Capistrano Unified High School. In the case, the district court found that an in-class comment by high school history teacher James Corbett which characterized creationism as “superstitious nonsense” violated the Establishment Clause . . . ”
Keen News Service: “The case is Collins v. Brewer from Arizona. The case, brought by Lambda Legal Defense and Education Fund, pits a group of 10 gay state employees (including Tracy Collins) against a new state law barring them from signing up their domestic partners and children for family health insurance coverage. Such family coverage is made available to straight employees who are married.”
Lee Habeeb writes at Townhall: “For anyone who doesn’t think that judges don’t matter, I beg you to read Judge Roger Vinson’s remarkable opinion in Florida v. Health and Human Services. His writing was clear, the legal reasoning astounding, and if upheld by the US Supreme Court, could go down in history as one of America’s most important legal decisions. But before we dig into Justice Vinson’s opinion, let’s talk a bit about why judges matter.”
Debra J. Saunders writes at Townhall: “Four times this month, the U.S. Supreme Court has slapped down the Ninth Circuit Court of Appeals. Four times the Big Bench unanimously reversed Ninth U.S. Circuit Court of Appeals decisions. Unanimous is a big deal. It means that there’s no left-right political divide in the Big Bench’s findings — just right on the law and wrong on the law. I take unanimous seriously.”
Washington Post: “Sometimes the Supreme Court simply decides cases, and sometimes it seems to have something bigger in mind. In the past two weeks it has been in scold mode, and its target has been the U.S. Court of Appeals for the 9th Circuit.”
SCOTUS Blog: The Ninth Circuit Court has turned down the Obama Administration’s request to put on hold the case testing the constitutionality of the “don’t ask/don’t tell” law restricting the right of gays to serve in the military. In a one-page order, issued Friday, however, the Circuit Court added another month to the time before the briefing schedule is to begin. That was the Administration’s alternative plea.
Westlaw News and Insights: “The 9th Circuit has reversed a lower court’s ruling that a Los Angeles ordinance prohibiting combined adult retail and arcade establishments violated the First Amendment. The court of appeals said the bookstore and arcade that brought the suit did not offer enough evidence to show that the city’s ordinance was unconstitutional.”
Alameda Books Inc. v. City of Los Angeles, No. 09-55367 (9th Cir. Jan. 28, 2011)
Los Angeles Times: “An attorney for same-sex couples hoping to overturn Proposition 8 in federal court urged the California Supreme Court on Tuesday to reject a request that it rule on whether initiative sponsors have authority to defend ballot measures.”
Religion Clause: “Yesterday, a panel of the 9th Circuit issued an amended opinion and denied an en banc rehearing in Spencer v. World Vision, Inc., (9th Cir., Jan. 25, 2011). At issue is whether the Christian humanitarian organization, World Vision, comes within the exemption in Title VII . . . ”
Orin Kerr writing at The Volokh Conspiracy: “I don’t know which is more newsworthy: A day that the Supreme Court hands down new opinions that includes a unanimous reversal of a Ninth Circuit decision by Judge Reinhardt, or a day that the Supreme Court hands down new opinions that does not include a unanimous reversal of a Ninth Circuit decision by Judge Reinhardt.”
9th Circuit: Ignorance of religious doctrine does not support adverse credibility finding in asylum application
Courthouse News Service: “A Chinese man who says he was persecuted in his home country for practicing Christianity got a second chance at asylum in the United States. In 2005, an immigration judge had rejected Lei Li’s petition because Li incorrectly answered ‘basic’ questions about Christianity.” | Li v. Holder, (9th Cir., Jan. 19, 2011) | Via Religion Clause.
Inside the Issues: “Alliance Defense Fund Senior Counsel [Joseph Infranco] and ADF-allied attorney Charles S. LiMandri spoke on Saturday, January 15, 2011 at a rally in support of protecting the Mt. Soledad Veterans Memorial . . . ‘War heroes have earned the right to be remembered,’ Infranco said. ‘The memory of those who sacrificed their lives for our freedom shouldn’t be dishonored because the ACLU claims several people were merely offended.’”
Life to Death: Our Constitution and How It Grow
“[T]he Constitution is a ‘living’ document that primarily guarantees rights and privileges to the inhabitants of contemporary America, rights and privileges that may expand as our nation continues to develop. For those of us who believe in a ‘living’ Constitution, the Constitution itself is much more than a mere historical text to be parsed for its literal, original meaning . . .”
SCOTUSblog: “The Justice Department on Friday asked the Ninth Circuit Court either to put on hold the constitutional case on gays in the U.S. military, or else give it more time to file its written arguments — a plea that would stretch out the briefing schedule another month. The request came in a new filing (found here) after a gay rights advocacy group had opposed any further delay in the appeals court process.”
ChristianNewsWire: “Hundreds maybe thousands of patriotic citizens along with local and national leaders will rally tomorrow 10am PST in San Diego in relentless defense and support of the Mt Soledad Veterans Memorial Cross atop Mt Soledad near La Jolla, Ca . . . ‘It’s tragic that the court chose a twisted and tired interpretation of the First Amendment over the common sense idea that families of fallen American troops should be allowed to honor these heroes as they choose. No one is harmed, constitutionally or otherwise, by the presence of a cross on a memorial. The memorial cross should stand in honor of the sacrifice made by American troops.’ said [Joe Infranco], Senior Counsel, Alliance Defense Fund.”
Speak Up Movement / Church: “So, on one side we have long-standing tradition, Congress and the President, local residents, and veterans. What could possibly be placed on the opposite side of the scale to tip the balance? The answer is a handful of individuals who claim to be ‘offended’ by the sight of the memorial. This is not a misprint or misstatement, and now, if this three judge panel has its way, it will be the law for much of the country.”
WORLD Mag: “The second controversial cross stands in La Jolla, Calif., on land that the federal government took through eminent domain in 2006 after a district court judge ruled that the cross violated the California State Constitution . . . [Joe Infranco], senior counsel for the Alliance Defense Fund (ADF), said that Justice Anthony Kennedy’s language in Salazar v. Buono makes ADF hopeful that the Supreme Court will rule in favor of the cross standing.”
ADF President and CEO Alan Sears writing at Inside the Issues: “Paul warned the Christians of Corinth that the cross would always be ‘a stumbling block’ and ‘foolishness’ (1 Corinthians 1:22) to the people around them. He told the Philippians that there were many who act as ‘enemies of the cross of Christ (Philippians 3:18).’ That opposition took a significant new legal hold in a ruling issued January 4th by the U.S. Court of Appeals for the 9th Circuit. The court ruled 3-0 that the memorial cross that has stood at Mount Soledad since 1954 violates the U.S. Constitution.”
Pacific Justice Institute: “Prominent atheist Michael Newdow is asking the U.S. Supreme Court to declare that the national motto, ‘In God We Trust,’ is unconstitutional. Pacific Justice Institute is a co-defendant in the lawsuit, alongside U.S. government officials.”
Viewing the evidence in the light most favorable to the nonmoving party, Dawson produced circumstantial evidence of retaliatory discharge and sexual orientation hostile work environment, such that resolution of this action by summary judgment was error. We reverse and remand.
California Catholic Daily: “[Joe Infranco], senior counsel of the Arizona-based Alliance Defense Fund, criticized the ruling. ‘It’s tragic that the court chose a twisted and tired interpretation of the First Amendment over the common sense idea that the families of fallen American troops should be allowed to honor these heroes as they choose,’ he said.”
Wendy Kaminer writing in The Atlantic: “[I]t’s not entirely surprising to hear a lawyer for the conservative Christian Alliance Defense Fund (ADF) assert that commemorating a public war memorial with a giant cross is merely a ‘common sense idea.’ He was protesting a 9th Circuit ruling (PDF) that a Latin cross is a sectarian religious symbol, maintained by the state in violation of the First Amendment. Whether the cross is a secular or religious symbol is indeed a question that can be answered with reference to common sense, and the Court answered it correctly, to ADF’s dismay.”
Bruce Walker writing at The New American: “The Alliance Defense Fund, a Christian legal group based in Arizona, had been fighting efforts to remove the cross. [Joe Infranco], senior counsel for the group, urged that the cross be left, saying: ‘There memory of those who sacrificed their lives shouldn’t be dishonored because the ACLU finds a small number of people who are merely offended’ . . . Why should cities with such profoundly religious names be allowed to tax people to support them? Maybe that could be the next stage in the taxpayers’ revolt.”
SEO Law Firm: “Alliance Defense Fund Litigation Counsel [Jim Campbell] said of the issue, ‘The people of California have the right to be defended, and thus the official proponents of Proposition 8 must have standing to defend that law. Otherwise, the governor and attorney general will succeed in indirectly invalidating a measure that they had no power to strike down directly.’”
San Francisco Chronicle: “A female jail guard’s strip search of a male inmate was a ‘humiliating event’ that violated his rights, a divided federal appeals court in San Francisco ruled Wednesday.” | Byrd v. Maricopa County Sheriff’s Department, No. 07-16640 (9th Cir. Jan 5, 2011)
Gina Miller writing at Dakota Voice: “‘”Unfortunately, the decision does not surprise me based on the philosophical beliefs and records of the judges on the panel. The decision was more likely than not,” said Alliance Defense Fund Senior Counsel Joe Infranco. ADF filed an amicus brief in the case on behalf of the American Legion.’”
CNA: “‘It’s tragic that the court chose a twisted and tired interpretation of the First Amendment over the common sense idea that the families of fallen American troops should be allowed to honor these heroes as they choose,’ [ADF attorney Joe Infranco] said.”
OneNewsNow: “The ongoing fight over whether the Bible and other religious texts should be allowed in Idaho’s classrooms is about to go before the Ninth U.S. Circuit Court of Appeals . . . ‘The Supreme Court has ruled several times already that it’s consistent with the Establishment Clause to study the Bible as part of history or literature objectively in public schools,’ the [ADF Attorney David Cortman] notes. ‘So some interesting questions are presented here.’”
Michael Foust reports at Baptist Press: “‘Politicians should not be able to nullify a democratic act of the people by refusing their duty to defend it,’ Alliance Defense Fund attorney [Jim Campbell] said.”
Charisma: “Alliance Defense Fund Senior Counsel [Joe Infranco] says war heroes have earned the right to be remembered. As he sees it, the memory of those who sacrificed their lives for our freedom shouldn’t be dishonored because the ACLU finds a small number of people who are merely offended.”
John Culhane, Professor of Law at Widener University, writing at 365Gay.com: “Second, it’s very clear now that the panelists really want to answer the monumental constitutional issue put before them. They have just made it much harder for the Supreme Court to dodge the question on the basis of standing, as would have been likelier had the judges simply ruled – one way or the other – on standing. In that case, the losing side would have appealed that ruling to the high court, which could simply have decided there’s no standing and thereby allowed same-sex marriages in California – but only there – to continue.”
Family Research Council: “Family Research Council (FRC) today called on the full Ninth Circuit Court of Appeals to take up the Mt. Soledad Cross case, Trunk v. San Diego. Yesterday, a three-judge panel of the Ninth Circuit ruled that the Mt. Soledad war memorial is unconstitutional.”
Ginny LaRoe writing in The Recorder (Law.com): “At oral argument, David Boies said state law should have no effect on the court’s Article III standing analysis, but the judges in their per curiam order seemed to disagree . . . [i]f the state justices agree to answer the question — they don’t have to — it could detour the appeal for months.”