Tag Archives: Court: 9th Circuit

Vincent R. Caravan writes in The Valley News: “Now Pastor B. G. Stumberg and his small Baptist church were in the national news, but also in potential trouble, like losing its non-profit status and becoming a political action committee. The Alliance Defense Fund (ADF) enters the fray at this point. Its objective was to uphold the principle that churches have a right to speak to moral-political subjects from the pulpit…”

Nathan Black reports in The Christian Post:

“Tim Chandler, legal counsel of the Alliance Defense Fund, stated, ‘One person’s agenda shouldn’t diminish the sacrifice made by America’s veterans and families.’

‘Americans want these memorials to be protected,” he added. “What is more important: the feelings of a single ‘offended’ person or honoring the memory of thousands of American heroes in a way that has been considered constitutional throughout our nation’s history? If the Mojave cross is not allowed to stand, then numerous other veterans’ memorials are vulnerable to legal attack.’”

Indiana Law Review: “This Note analyzes the reasoning applied by the Ninth Circuit in Buono IV and contrasts it with the Seventh Circuit’s treatment of similar legal issues in Freedom from Religion Foundation, Inc. v. City of Marshfield (Marshfield) and Mercier.”

“The resolution was passed in response to the Vatican’s directive that Catholic social service agencies should not place children in same-sex households.”

Catholic League argues that in adopting the resolution the Board expressed disapproval of the Catholic religion in violation of the First Amendment’s Establishment Clause

William and Mary Bill of Rights Journal: “Though it may appear the court’s disposition in the cross controversy was a clear matter of reinforcing the wall separating church and state, the ancillary issue implicating federal free exercise rights was mistreated by the court. Although the Ninth Circuit rested its separationist-favoring decisions on the California Constitution, the California Supreme Court has interpreted the state’s highest law in a far less stringent manner, affording more objective treatment to religious practice. Furthermore, in relying solely on state law and refusing to treat the federal issue, the court failed to properly consider the ramification of its decision on the federally protected right to the free exercise of religion.”

“The Obama administration has decided to accept an appeals-court ruling that could undermine the military’s ban on service members found to be gay.”

Barnes-Wallace v. City of San Diego, No. 04-55732 (9th Cir. May 15, 2009): On April 1, 2009, the California Supreme Court denied this court’s request for decision of certified questions without prejudice to renewal of the request after resolution of …

Attorneys with the Christian Legal Society’s (CLS) Center for Law & Religious Freedom are asking the U.S. Supreme Court to protect the right of a religious student group to draw its leaders from those who share the group’s religious views.

The Religion Clause Blog reports: “The Gallup (NM) Independent reported yesterday that the Navajo Nation Council has approved its attorneys meeting with the Obama administration to try to work out a settlement in Navajo Nation v. United States Forest Service . . . Some delegates to the Navajo Council say the organization may have to appeal to international bodies under principles of international law to obtain relief. ”

Metropolitan News-Enterprise: “The intervenors are represented by two national conservative advocacy groups, the Institute for Justice and the Alliance Defense Fund. The defendants and intervenors moved to dismiss based on lack of standing, failure to state a claim under the Establishment Clause, and res judicata. Carroll dismissed the suit again in 2005, this time for failure to state a claim.”

Metropolitan News-Enterprise: “On remand, U.S. District Judge Earl H. Carroll allowed two large STOs—one which gives religious school scholarships only and one which gives both religious and secular school scholarships—and two parents of STO scholarship recipients to intervene in defense of the program. The intervenors are represented by two national conservative advocacy groups, the Institute for Justice and the Alliance Defense Fund.”

East Valley Tribune: “Jeremy Tedesco of the Alliance Defense Fund, representing the Arizona Christian School Tuition Organization, said there is no state coercion of any sort. He said individuals, not the state, decide to which tuition organization they want to donate, and parents decide from which group to seek scholarships.”

“McCaleb explained that scholarship tuition organizations that fund only religious schools do not violate the Establishment Clause of the First Amendment because they are private organizations that do not distribute any government money.”

CNSNews: “At issue now is who gets to decide what constitutes ‘appropriate action’ — the Arizona Legislature or the federal courts. Horne and Arizona’s legislative leaders argue that since the 1974 law doesn’t define what actions are appropriate, it is up to Arizona’s Legislature to define the goals of the ELL program and to decide how to fund them — not Judge Marquez.”

Eugene Volokh has this post at the Volokh Conspiracy discussing the ruling in Nordyke v. King, No. 07-15763 (9th Cir. Apr. 20, 2009). He writes:

The panel instead follows the Supreme Court’s “selective incorporation” cases under the Due Process Clause, and concludes that the right to bear arms “ranks as fundamental, meaning ‘necessary to an Anglo-American regime of ordered liberty.’”

Metropolitan News-Enterprise:

Metropolitan News-Enterprise: “The California Supreme Court has declined to involve itself in a dispute over whether the state Constitution allows public land to be leased to organizations that discriminate on the basis of religion or sexual orientation.”

Regarding the recent 9th Circuit ruling in Christian Legal Society v. Kane, Rob Boston writing at Americans United for Separation of Church and State concludes: “This should be a lesson to the Religious Right about the dangers of unintended consequences, as well as a reminder – as if another one were needed – that access to public funds brings imposition of significant regulations too. ” Boston mentions ADF and quotes ADF attorney Jeremy Tedesco. Related: David French: Ninth Circuit ruling on Christian student groups lacks common-sense and is legally “out of step”;
9th Circuit: Law school can discriminate against religious club that refuses to allow open voting membership

David French writes at the National Review Phi Beta Cons Blog:
“Last Tuesday, the Ninth Circuit heard arguments in Christian Legal Society v. Kane, where the primary issue at oral argument was whether the panel was bound by the Ninth Circuit’s high-school ruling and must also limit the free-association rights of university students. This week, the answer came with shocking speed: neither high-school nor college religious groups can impose religious eligibility requirements on members or leaders . . . From a common-sense standpoint, this is absurd . . . From a legal standpoint, the Ninth Circuit is now decisively out of step with at least two other circuits . . .”

“The immigration judge in the lead case of three consolidated appeals rejected asylum finding the aliens were complaining of treatment for prosecution of criminal acts in China, not persecution for political beliefs.”

Michael Dorff writes at Findlaw: “Although it has long been accepted that children have constitutional rights, the law also acknowledges that, contrary to their sometimes creepy depiction in medieval art, children are not simply miniature adults. Rather, children differ from adults along multiple dimensions, and thus children’s constitutional rights should not simply be a ‘lesser’ version of adults’ rights. The fact that a case involves schoolchildren thus can be a ground for granting children different rights from those we would grant to adults, but it should not automatically be a ground for granting children fewer rights than adults enjoy.”

Religion Clause Blog: “In McComb v. Crehan, (9th Cir., March 20, 2009), the U.S. 9th Circuit Court of Appeals upheld the action of Clark County, Nevada school officials in cutting off the microphone at high school graduation ceremonies when the class valedictorian departed from her approved speech and began reading from a version that contained religious and Biblical references.”

Two attorneys involved in defending Canyon Ferry Road Baptist Church in a recent victory at the U.S. Court of Appeals for the 9th Circuit will make brief comments at a worship service at the church Sunday. ADF-allied attorney Tim Fox–a partner with the Helena law firm Gough, Shanahan, Johnson & Waterman, PLLP–and ADF Senior Counsel Gary McCaleb will be available for media interviews before and after a celebratory luncheon following the church service.

9th Circuit: Ultimately, refusing to enforce the stay put provision during the appeals process would force parents to choose between leaving their children in an education setting which potentially fails to meet minimum legal standards, and placing the child in private school at their own cost.

SCOTUS Blog: “Seeking to draw the Supreme Court back into the intensifying national debate over health care, a group representing restaurant operators in San Francisco on Wednesday asked for at least temporary relief from mandated spending for workers’ medical benefits. ”

Dan Levin writes at the Recorder: “The speculation over who will fill California vacancies on the 9th U.S. Circuit Court of Appeals shifted into a higher gear Tuesday, after the Obama administration made its first appellate pick.”

Both rulings allow public schools to “require religious organizations to include people in their groups who disagree with what the religious groups believe,” said attorney Jeremy Tedesco of the Alliance Defense Fund, a Christian legal organization that is involved in both cases on behalf of the student groups. “That’s a violation of the First Amendment, free speech and freedom of religion.”

OneNewsNow: A Christian club in Seattle is still going through the courts to gain recognition. The case has been in the courts since September 2001. Nate Kellum, an attorney with the Alliance Defense Fund (ADF), explains. “Kentridge High School has refused to grant official recognition to a student club called Truth Bible Club because [the club] wants to require their members to hold certain religious beliefs,” he says.

“President Obama faces a difficult decision as he weighs how to respond to judicial orders requiring the federal government to pay insurance benefits to the same-sex spouses of two lawyers . . ”

ABA Journal:

Judges on the 9th U.S. Circuit Court of Appeals are engaging in a war of pointed concurrences and sometimes snarky dissents to decisions denying en banc review . . .

Posted: 03/12/2009

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Category: Bench & Bar

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Source: www.abajournal.com

Tags: Category: Bench and Bar, Court: 9th Circuit

“In 2004, Hastings refused to recognize the Christian Legal Society because it wouldn’t allow gays and non-Christians to be members — violating the school’s nondiscrimination policy . . .”

The Religion Clause Blog: “Yesterday, the U.S. 9th Circuit Court of Appeals heard oral argument in Christian Legal Society v. Kane. A recording of the full oral argument is available online.” CLS The Center Blog: Listen to Christian Legal Society v. Kane oral argument

The lawsuit, filed by attorneys with CLS and the Alliance Defense Fund Center for Academic Freedom, challenges Hastings College of the Law’s discrimination against the school’s student chapter of CLS.

ADF attorney Dale Schowengerdt appeared on Talk from the Heart with Rich Buhler to discuss the case. The mp3 runs just over 9 minutes.  Last week, Dale appeared on God and Culture with Paul Edwards to discuss the same case. …

How Appealing links to the ruling in Doe v. Holy See, No. 06-35563 (9th Cir. March 3, 2009). The fifty nine page per curiam opinion begins: _________________________ We consider whether, on the allegations made in the Plaintiff’s complaint in this case, …

Leonard Link: Two courts in recent weeks have addressed the question whether states were violating the Constitution by requiring transparency regarding the identity of donors to ballot initiative campaigns . . . The 9th Circuit ruling concerning the Montana church …

On Wednesday, the 9th Circuit upheld Jerry Levis Banks’ conviction for “the possession, production, transportation, and receipt of images depicting minors engaged in sexually explicit conduct.” At issue on appeal was (1) the district court’s denial of Banks’ motion to suppress evidence seized pursuant to a warrant issued based on testimony from “a Canadian pedophile” with whom Banks had traded pornography; (2) the admission of evidence from Banks’ wife; and (3) the denial of Banks’ motion to suppress the court’s applications of the definitions of “masturbation” and “lascivious.”

ABA Journal: “The Supreme Court has yet to affirm a decision by the San Francisco-based appeals court this term, the Daily Journal reports (sub. req.).”

Today, the 9th Circuit upheld a grant of summary judgment against California resident Nano Maldonado, who sued the California Department of Transportation on First Amendment and procedural grounds when the DOT attempted to enforce a California statute prohibiting offsite commercial billboards along “landscaped freeway.”

The U.S. Court of Appeals for the 9th Circuit reversed a ruling Wednesday which had upheld as constitutional a Montana commissioner’s determination that a church violated state law by not registering as an “incidental political committee.”

“Held: Idaho’s ban on political payroll deductions, as applied to local governmental units, does not infringe the unions’ First Amendment rights.”

“The university should be a marketplace of ideas, not an institution for suppressing speech that is ‘unpopular’ with the academic elite,” said ADF Legal Counsel Jeremy Tedesco.

The Ninth Circuit has struck down a California law that sought to ban the sale or rental of violent video games to minors.

Vikram David Amar and Alan Brownstein have posted this Findlaw commentary that begins: The U.S. Supreme Court will decide in the coming weeks whether to take up an important and interesting case from the U.S Court of Appeals for the …

At the National Review Bench Memos Blog, Matthew J. Franck raises various questions about the propiety of the recent rulings by Ninth Circuit judges Alex Kozinski and Stephen Reinhardt interpreting the Federal DOMA. Franck asks:  Are these orders of Judges …

Since this decision does not create precedent that other courts must follow, what is most important is not the outcome but the reasons given for that outcome. Reinhardt’s opinion provides a blueprint for a future federal decision holding not only that DOMA is unconstitutional, but also that the Constitution mandates a redefinition of marriage in every state. His reasoning does not withstand scrutiny, but that has rarely stopped judges intent on writing laws instead of interpreting them (of whom Reinhardt is one of the most flagrant examples).

If the Ninth Circuit follows the Seventh Circuit’s lead (and if the Eleventh Circuit follows suit), then student free-association rights will be virtually assured. If either the Ninth Circuit or the Eleventh Circuit rules for the university, then a classic “circuit split” will exist . . .

Jay Sekulow writes on BeliefNet: Barry, there’s another troubling development in the education world – this one is not about stimulus funds for higher education facilities – this centers on high school curriculum and focuses directly on what’s being taught …

LA Times: “Despite the prominence of the two judges, the rulings are legally meaningless for all but the two couples because they came in the court’s administrative dispute process, rather than in lawsuit judgments.” See earlier post: Two 9th Circuit Judges …

“Reinhardt’s order declared the federal Defense of Marriage Act is unconstitutional, while Kozinski’s order didn’t reach the ‘hard question’ of the statute’s constitutionality.”

The Religion Clause Blog reports: “In EEOC v. Serrano’s Mexican Restaurant, LLC, (9th Cir., Jan. 5, 2009), the U.S. 9th Circuit Court of Appeals upheld an Arizona federal district court jury’s determination that a restaurant chain had reasonably accommodated a …

Using the dispute between the native tribes of northern Arizona and the federal government over the development of the Peaks, this article will demonstrate how the Supreme Court’s decision in Smith, as well as the subsequent activities of courts and legislative bodies, has disrupted well-settled law and has created a quagmire of confusion related to religious freedom. The Supreme Court will likely have an opportunity to fix this legal disaster as the current Peaks lawsuit progresses through the court system to an inevitable writ of certiorari. As it faces this particular suit, the Court can and should overrule Smith, declare RFRA unconstitutional, and restore the proper test for the analysis of the First Amendment’s Free Exercise Clause.

Americans U. for Separation of Church and State: The Christian cross is not an appropriate symbol to memorialize deceased veterans of many different faith perspectives and should not be displayed on government property, Americans United for Separation of Church and …

Using the dispute between the native tribes of northern Arizona and the federal government over the development of the Peaks, this article will demonstrate how the Supreme Court’s decision in Smith, as well as the subsequent activities of courts and legislative bodies, has disrupted well-settled law and has created a quagmire of confusion related to religious freedom.

The AP: American Indian tribes are asking the U.S. Supreme Court to review a lower court’s decision that allows for snowmaking on an Arizona peak the tribes consider sacred . . . The 9th U.S. Circuit Court of Appeals in …

In any event, the plaintiffs in this case do not argue that they have been excluded. They have not, it turns out, even tried to use Camp Balboa and associated facilities. Rather, they argue that they have refused to use them because they are run by the Boy Scouts whose (religiously based ) views they find to be reprehensible.

The San Diego Union Tribune reports: The state Supreme Court, after a nearly two-year delay, will be asked to determine whether city of San Diego leases of Balboa Park land violate the state constitution’s ban on government preference for religious …

Dan Levin writes on the Recorder: A pair of couples, one lesbian and another agnostic, challenged a lease the Scouts signed with the city of San Diego allowing them to operate recreational facilities on park land. They said the deal …

How Appealing links to the ruling and provides this key quote: Circuit Judge Diarmuid F. O’Scannlain has issued an opinion dissenting from the denial of rehearing en banc that begins: Today, our court promulgates an astonishing new rule of law …

The U.S. Court of Appeals for the Ninth Circuit today rejected taxpayers Michael and Marla Sklars’ argument that they were entitled to claim deductions for tuition and fees paid to their children’s Orthodox Jewish day schools, the Justice Department announced.

The Religion Clause Blog reports: In Love Korean Church v. Chertoff, (9th Cir., Dec. 5, 2008), the 9th Circuit Court of Appeals interpreted the provisions of 8 USC 1153(b)(4) that provide up to 5000 permanent resident visas per year for …

“The panel did not actually hold DADT unconstitutional but announced a heightened scrutiny standard applicable to the policy based on the Supreme Court’s decision in Lawrence v. Texas . . .
Now the Ninth Circuit has refused to hear the case en banc, with six judges dissenting . . . ”

The Pacific Justice Institute reports:  A year after lawsuits against the Pledge of Allegiance and national motto were argued before the Ninth Circuit Court of Appeals, the fate of both cases still hangs in the balance . . .  With …

How Appealing links to several reports discussing the latest news from the ethics investigation of Judge Alex Kozinski of the Ninth Circuit Court of Appeals.

How Appealing links to filings and reports quoting from the Daily Journal of California:  Federal prosecutors have written to all 50 judges on the 9th U.S. Circuit Court of Appeals, asking them to consider recusing themselves from hearing accused pornographer Ira …

Legal Blog Watch reports: An ethics panel of the 9th U.S. Circuit Court of Appeals in San Francisco issued an order this week staying the investigation of a lawyer’s complaint against Circuit Chief Judge Alex Kozinski, Cynthia Cotts is reporting …

How Appealing reports that an ethics committee of the Ninth Circuit has put an ethics complaint against Judge Kozinski on hold.

The San Francisco Chronicle reports: “A state lawyer tried Wednesday to revive California’s ban on selling violent video games to minors by arguing, to an apparently skeptical federal appeals court, that mayhem should be judged by the same obscenity standards …

In U.S. v. Seljan 2008 WL 4661700 (9th Cir. Oct. 23, 2008), the U.S. Court of Appeals for the Ninth Circuit upheld the conviction of John W. Seljan “for multiple offenses primarily involving sexual misconduct with young children in the Philippines.”

“. . . there were four votes to say the Establishment Clause is violated only if the government literally establishes a church or coerces religious participation,” said Chemerinsky . . . “Now, I think there are five.” . . .

The National Law Journal reports: “Chief Judge Alex Kozinski, of the 9th U.S. Circuit Court of Appeals, faces a new misconduct complaint that accuses him of illegally disabling court software in 2001 that was intended to detect improper staff Internet …

The Religion Clause Blog reports: “In Snoqualmie Indian Tribe v. Federal Energy Regulatory Commission, (9th Cir., Oct. 7, 2008), the U.S. 9th Circuit Court of Appeals upheld FERC’s granting of a 40-year license renewal to Puget Sound Energy, Inc. to …

“An anti-abortion group has won its long legal fight to force Arizona to issue “choose life” license plates, after the Supreme Court declined to take the case . . . The case is Stanton v. Arizona Life Coalition, 07-1366.”

The Ninth Circuit has issued a ruling in Caldwell v. Caldwell, No. 06-15771 (9th Cir. Oct. 3, 2008) We must decide whether Jeanne E. Caldwell, who asserts an interest in being informed about how teachers teach the theory of evolution …

Bloomberg reports: “Alex Kozinski, chief judge of the federal appeals court in San Francisco, was formally accused by Los Angeles lawyer Cyrus Sanai of making pornography available on a public Web site, the attorney’s third misconduct complaint against the judge …