Some anniversaries should not have to be celebrated because the events they mark should not have occurred.  January 22, 2012, the 39^th anniversary of the Supreme Court’s Roe v. Wade decision, is one of them.  That decision is one of the greatest moral and legal tragedies in American history.

It is a moral tragedy in multiple ways, and they all stem from one inescapable fact.  Every abortion kills a living human being.  No word game, subject change, or political spin can change that fact.  There have been nearly 50 million abortions since 1973 and, according to the pro-abortion Guttmacher Institute, the “decline in abortion incidence has stalled.”  More babies in America lose their lives to abortion every two days than American service members have been killed in Iraq and Afghanistan since 2003.

As President Ronald Reagan wrote on Roe‘s 10^th anniversary, the question is not when human life begins, but what is the value of human life?  That remains the question today.  Our Declaration of Independence says that every individual is created and given rights by God.  The federal government spends hundreds of billions of dollars each year on programs to help the poor, elderly, sick, or disabled.  Why?  It is nothing less than moral schizophrenia to say that the very same people who should be helped today could have been killed before they were born.

There is a glimmer of light peeking through this otherwise dark cloud.  After nearly four decades of pro-abortion propaganda and the drumbeat that abortion is a constitutional right, most Americans still oppose most abortions and a majority says that they are pro-life and that abortion is morally wrong.

Roe v. Wade is also a legal tragedy in the way it reached these morally tragic results.   Make no mistake, there is no right to abortion in the Constitution; the Supreme Court simply made it up.  Take a step back from the subject of abortion for a minute and think about what this means.  The Constitution is supposed to be the primary way that the people impose limits and rules on government.  The Constitution is written down so everyone will know what those limits and rules are.  George Washington said that the people’s control over the Constitution is literally the heart of our system of government.  Our freedom depends on it.  But when the Supreme Court changes the Constitution, as it did in Roe, it takes control of the Constitution away from the people, and their freedom along with it.

The phrase “judicial activism” gets tossed around a lot these days, as if it is nothing more than a label for any decision you do not like.  Judicial activism really means judges taking control of the law in order to produce certain results.  Claiming that there is a right to abortion in a Constitution that says no such thing, and using this made-up right to strike down state and federal laws, is as activist as it gets.

President Reagan wrote in his essay: “We cannot diminish the value of one category of human life – the unborn – without diminishing the value of all human life.”  Make no mistake about it; the end result of an activist judiciary that rejected our most cherished constitutional principles is the loss of 50 million innocent lives.  In Roe v. Wade, the Supreme Court used judicially tragic means to achieve a morally tragic end.  By highjacking the Constitution and creating this so-called right to abortion, the Supreme Court attacked not only the value of human life itself, but also the liberty of all Americans.  I hope that this decision has few anniversaries left.

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Major media outlets are reporting the remarkable story of a French father’s 29-year quest for his daughter’s killer, a quest that has resulted in the arrest of a man who committed the murder.

For three decades, Andre Bamberski pursued the  rapist and murderer of his then-14 year-old daughter Kalinka, Dieter Krombach.  After offering a reward for his capture, Krombach was abducted from Germany and brought to France, where he had been convicted in absentia of causing a wrongful death in 1995.  Krombach, 76, will spend the next 15 years in jail, should he live that long.

Andre Bamberski is awaiting trial on charges of kidnapping.  Perhaps this is appropriate.  But what father cannot help but admire Andre’s dogged determination to see the man who assaulted and killed his daughter brought to justice?  To refuse to accept anything less than punishment for the monster who took his daughter’s life?

“History is a relentless master,” said John F. Kennedy.  “It has no present, only the past rushing into the future.”  History is relentless, in part, because men like Andre Bamberski refuse to let it elide quietly into memory.  That’s why Dieter Krombach is now in jail.  To borrow a phrase from the Anglican Book of Common Prayer, “Here endeth the lesson.”

Tags: Andre Bomberski, Dieter Krombach, History, Justice

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In good news for all who cherish religious liberty, the Supreme Court has decided to let stand a Ninth Circuit Court of Appeals ruling that the Christian charity World Vision was within its legal rights to fire three employees who, after signing the ministry’s doctrinal statement, admitted to denying the Deity of Christ.

The importance of this ruling is obvious and profound: If an explicitly religious organization requires employees to sign a doctrinal statement, and they do so of their own free will, that organization has every right to terminate the employment of those who no longer subscribe to the beliefs articulated in the group’s own statement of faith. In the words of World Vision president Richard Stearns, “our Christian faith has been the foundation of your work since the organization was established in 1950, and our hiring policy is vital to the integrity of our mission to serve the poor as followers of Jesus Christ”.

World Vision’s principled stand was stated by its VP and Chief Legal Officer, Steve McFarland, who noted that WV would stop taking federal funds before employing anyone who could not, in good conscience, support its doctrinal positions.

Secularists don’t understand the integrated nature of all faith-based activities: In any ministry, a person who welcomes guests at a reception desk is representing Christ as surely as the ordained minister behind the pulpit. Sacred and secular are not, for Christians, distinct domains. Jesus claims Lordship over all of life, and ministries recognizing this know they cannot but weaken their missions and ministries if they hire those who disagree with their beliefs.

Tags: Religious Liberty, US Supreme Court, World Vision

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The federal Defense of Marriage Act (DOMA) was enacted in 1996 by large bipartisan majorities in both houses of Congress and signed into law by President Bill Clinton. It ensured that states would not have to recognize same-sex “marriages” from other states, and that the federal government would recognize only the union of one man and one woman as “marriage.”

Yet now, DOMA is under the sharpest attack in its history—despite the fact that four federal courts have already upheld its constitutionality, and no federal or state appellate court has ever said that it violates the U.S. Constitution. In July 2010, however, a single federal District Court Judge in Boston, Joseph L. Tauro, ruled in a pair of cases that the federal definition of marriage in DOMA is unconstitutional. In November 2010, two more federal court challenges to DOMA were filed in New York and Connecticut. In total, there are no less than ten currently pending federal court cases which involve some form of challenge to DOMA. Here are some key questions and answers about the current status of this law:

Q: What did Attorney General Eric Holder announce on February 23 about the administration’s position regarding the federal Defense of Marriage Act (DOMA)

A: In a press release and in a letter to Congress, Mr. Holder said that he and President Obama have concluded that one of the provisions of the Defense of Marriage Act—the one which limits the federal government to recognizing only marriages between one man and one woman—is unconstitutional. This marked a sharp reversal, since the Department of Justice has submitted several briefs defending the constitutionality of DOMA in previous court cases.

This decision represents a shocking abdication of the Attorney General’s, and the President’s, constitutional responsibility to “take care that the laws be faithfully executed,” and sets a dangerous precedent for future executive refusals to defend existing law.

Q: What motivated this change of position?

A: Politics likely played a major role, as the Obama Administration has been under intense pressure from pro-homosexual activists to stop defending DOMA. There is also evidence which suggests collusion between the Justice Department and attorneys who are challenging DOMA and the definition of marriage in court. Attorneys in the case of Perry v. Schwarzenegger, who seek to overturn California’s marriage amendment (Proposition 8) and establish a federal constitutional right to same-sex “marriage,” filed a Motion to Vacate Stay with the Ninth Circuit, containing detailed citations from the Attorney General’s letter, just hours after the letter was released.

Family Research Council has filed a Freedom of Information Act (FOIA) request for any communications between the DOJ and litigants and attorneys in this case or in the cases challenging DOMA in other courts.

Q: Hasn’t President Obama opposed DOMA all along?

A: Yes, Mr. Obama favors the repeal of DOMA. However, it is possible to believe that a law represents bad public policy, while at the same time believing that it does not violate the Constitution. This had been the position of the Obama administration until February 23, 2011.

Q—How can the Administration justify such an about-face?

A: Earlier cases challenging the constitutionality of DOMA (such as the Massachusetts cases decided by Judge Tauro) had been filed in federal court circuits in which there was controlling precedent saying that classifications based on “sexual orientation” are subject only to a “rational basis” test—the most lenient level of scrutiny, under which legislative choices are accorded the greatest deference. The DOJ’s briefs had argued that DOMA was constitutional by this standard.

The new lawsuits challenging DOMA in New York and Connecticut, however, were filed in federal courts located in a circuit (the Second) without any such precedent. Mr. Holder claims that this caused the DOJ to re-examine the question of the appropriate standard of inquiry, and that in turn led him to declare that “classifications based on sexual orientation warrant heightened scrutiny.”

Q: What does “heightened scrutiny” mean?

A: When a law creates a “classification” that treats some individuals or groups differently from others (in this case, treating opposite-sex couples differently from same-sex couples), it may sometimes be challenged as violating the Constitution’s guarantee of the “equal protection” of the law. However, most laws are judged under a “rational basis” test, meaning that a legislative enactment will be upheld as long as there is any conceivable rational basis for the classification.

However, “heightened scrutiny” usually applies to classifications based on characteristics considered immutable and irrelevant to legitimate policy objectives, possessed by groups who are minorities or politically powerless and have been subject to a history of discrimination. The classic examples are race and sex. The Supreme Court has never said that this standard applies to “sexual orientation.” It would increase the chances of a court striking down laws which limit marriage or its benefits to the union of one man and one woman, such as DOMA.

Q: How did the Attorney General justify this call for “heightened scrutiny.”

A: Mr. Holder asserted that “a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable.” However, he cited only one source in support of this contention—one dated 1992. In a footnote, he further claims that “discrimination has been based on the incorrect belief that sexual orientation is a behavioral characteristic that can be changed.”

In fact the theory that there is a “gay gene” or that people are “born gay” has been largely discredited by science since the early 1990’s. Studies of identical twins, such as one in the American Journal of Sociology in 2002, “support the hypothesis that less gendered socialization in early childhood and preadolescence shapes subsequent” homosexuality. And evidence that homosexuals can change has come even from Dr. Robert Spitzer, the psychiatrist who led the effort to remove homosexuality from the official list of mental disorders. In a 2003 study, Spitzer found that “changes [in sexual orientation] . . . were not limited to sexual behavior and . . . self-identity. The changes encompassed sexual attraction . . . the core aspects of sexual orientation.”

Q: Who can defend DOMA if the Justice Department refuses to?

A: The courts have long recognized Congress’s vital interest in defending the constitutionality of its Acts in the rare circumstances that the Justice Department refuses to provide such a defense. This happens as recently as 1983 in INS v. Chadha. The Supreme Court made clear in the 1997 case Raines v. Byrd that individual members cannot assert these interests, as Congress can only act through resolutions passed by the majority. Either chamber may do so individually.

Q: What would it mean if DOMA were struck down by the courts?

A: The immediate result would be federal government recognition of same-sex “marriages” that are already legal in the state where they occurred. However, if the federal definition of marriage as the union of one man and one woman is found unconstitutional, it would be only a matter of time before the same definition at the state level would be struck down—including in the 29 states that have put that definition in their own constitutions. This is exactly the remedy sought by the plaintiffs in Perry (the Proposition 8 case), which is now before the Ninth Circuit.

Q: What should be done now?

A: Congress must continue to defend DOMA in court, since the Justice Department refuses to do so. Bills to legalize same-sex “marriage” must be defeated in state legislatures, and additional state marriage amendments must be adopted defining marriage as the union of a man and a woman. These make it hard for any court to find that there is an “emerging consensus” in favor of same-sex “marriage.” Finally, pro-family groups actively involved in the defense of marriage in court, such as the Alliance Defense Fund, and others involved in filing and coordinating amicus briefs, such as Family Research Council, need financial support for these efforts.

It is quite possible that the issue of same-sex “marriage” will reach the U. S. Supreme Court in 2012 or 2013. Pro-family citizens and office-holders must “speak now, or forever hold your peace.”

Tags: Defense of Marriage Act, DOMA, Eric Holder, Marriage, Obama, Obama Administration, Same-sex marriage

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If you’re interested in a legal presentation on what’s wrong with Obamacare, FRC’s own Ken Klukowski delivered a lecture to The Federalist Society of Syracuse University — which is now online in four parts:

Part 2

Part 3

Part 4

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Today is the 223rd anniversary of the publication of the first of what became known as The Federalist Papers. Alexander Hamilton, James Madison, and John Jay, intellectual luminaries whose brilliance shines across the years, produced 85 treatises on the newly-proposed Constitution.

The Federalist Papers were designed to persuade their fellow citizens that a Constitution that defines, empowers and constrains the federal government was worth enacting. They succeeded in their project.

In our time, we are confronted by judges who believe the Constitution is not the carefully crafted text the Founders gave us but, rather, political putty onto which they can impress their personal beliefs and political vision. As Thomas Jefferson predicted, the Constitution has become, for those believe in legislating while presiding in a court, “a mere thing of wax in the hands of the Judiciary, which they may twist and shape into any form they please.”

Defenders of the activist courts claim that those who wish to constrain judicial overreach want to erode the independence of the judiciary. To the contrary:

• When a judge overturns the result of a state ballot election vote declaring what we have always known – that marriage is between a man and a woman;
• When a judge says that the National Day of Prayer is unconstitutional;
• When a judge believes she has the expertise to scrub multiple academic studies, not to mention the whole history of the Armed Forces’ warrior culture, in order to declare that military service for homosexuals is a “right,” and;
• When a panel of judges declares that same-sex marriage is a constitutional “right,”

those rejecting the right of judges to make such rulings are attacking not an independent judiciary but that judiciary’s willful rejection of that which it is sworn to uphold, the Constitution itself.

An independent judiciary does not mean judges should be untethered from the nation’s charter text, becoming laws unto themselves, legislating at will through the vehicle of judicial edicts. It means that when a judge or panel of judges rules consistent with the original meaning of the Constitution, they should not be bullied into unconstitutional jurisprudence. This is why federal judges have lifetime appointments; from the early days of the Republic, such appointments have been viewed as safeguards against political pressure.

In our time, many judges have become bullies, insistent on imposing their will upon our system of representative self-government and the people themselves. Thus, Justice Scalia’s assertion that the Constitution “means what it meant when it was written” is a shocking, retrograde, near-barbaric affront.

With the men who gave us The Federalist Papers, let us stand for an independent judiciary — independent from political shoving and pulling, but never independent from that which gives the judges themselves the right and power to serve: The Constitution.

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FOR IMMEDIATE RELEASE: September 9, 2010
CONTACT: J.P. Duffy, (202) 679-6800

September 09, 2010

WASHINGTON, D.C. – Family Research Council President and Marine veteran Tony Perkins released the following statement in response to today’s decision by a California federal judge overturning the law on open homosexuality in the military, most commonly referred to as “Don’t Ask, Don’t Tell”:

“It is hard to believe that a District Court level judge in California knows more about what impacts military readiness than the service chiefs who are all on the record saying the law on homosexuality in the military should not be changed. Once again, homosexual activists have found a judicial activist who will aid in the advancement of their agenda. This is a decision for Congress that should be based upon the input of the men and women who serve and those who lead them,” concluded Perkins.

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FRC President Tony Perkins appeared on CBS’s “Face the Nation” Sunday (8/8/10) to discuss the implications of the federal court ruling striking down California’s “Proposition 8.” Here’s a clip of the interview below, followed by links to other media coverage of the interview:

OFFICIAL TRANSCRIPT (CBS) [PDF]

Same-Sex Marriage Decision: “Far From Over” (CBS)

Family Research Council compares Prop. 8 to Roe; says fight not over (The Hill)

Perkins: We hope ‘sanity will reign’ on gay marriage ban (Politico)

Activists Gear Up for Next Round on Gay Marriage (CQ Politics)

Gay-Marriage Ruling Should Be Upheld, Ex-Solicitor General Ted Olson Says (Bloomberg)

Prop 8 attorneys Theodore Olson and David Boies say judge’s ruling is ‘constitutionally sound’ (NY Daily News)

Olson backs gay marriage ruling (Boston Globe)

Tags: CBS Face the Nation, Proposition 8, Same-sex marriage

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This week San Francisco federal Judge Vaughn Walker, in the case of Perry v. Schwarzenegger, ruled that the U.S. Constitution protects a right of same-sex couples to “marry.” This has sparked speculation about how the case might fare on appeal if and when it reaches the Supreme Court. Some commentators argue that the court’s decision striking down sodomy laws, in the 2003 case of Lawrence v. Texas, implies that the court would also back same-sex “marriage.” I wrote on that subject in 2004, and below are my observations, with quotes from the opinions in Lawrence.

The nuclear bomb of the homosexual marriage movement would be a decision by the United States Supreme Court declaring that it is unconstitutional to deny homosexual couples the benefits, or perhaps even the actual status, of civil marriage.

The likelihood of such a ruling appeared to increase exponentially when the Supreme Court struck down state laws against homosexual sodomy in the case of Lawrence v. Texas, which was decided on June 26, 2003.

Dissenting justice Antonin Scalia warned as much in his scathing dissent:

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestialiy, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision: the Court makes no effort to cabin the scope of its decision to exclude them from its holding.[i]

However, a close examination of the majority opinion seems to cast doubt on Scalia’s sweeping claim that there was no such effort to “cabin” the ruling’s scope. For example, Justice Anthony Kennedy’s decision says this:

The laws involved in Bowers and here . . . seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.[ii]

In other words, he concedes that these relationships may not be “entitled to formal recognition,” i.e., marriage. He goes on immediately after to say:

This, as a general rule, should counsel against attempts by the state, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.[iii]

Presumably he’s speaking of marriage here, and accepting that same-sex marriage, like adultery, might constitute “abuse of an institution the law protects.” Then in his conclusion, Kennedy again says:

The present case . . . does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.[iv]

Likewise, in her concurring opinion (basing her decision on equal protection considerations rather than privacy and due process), Justice O’Connor wrote:

That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations–the asserted state interest in this case–other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.[v]

In referring to “national security or preserving the traditional institution of marriage” as a “legitimate state interest,” she seems to be clearly saying that this case does not involve gays in the military or homosexual marriage.

Scalia, though, remained skeptical:

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples.

Although I greatly respect Justice Scalia, I don’t fully agree with this last sentence. As I have noted earlier, opposition to homosexual marriage does not have to be grounded only in disapproval of homosexual couples, but can rest in the recognition that their relationships are by nature something different from marriage.

While the majority opinion did have passages that appeared to distinguish the issues in Lawrence from those involved in marriage, yet other passages did indeed hint at a link. For example, Kennedy said:

When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.[vi]

In another passage, Kennedy cited the 1992 decision in Planned Parenthood of Southeastern Pa. v. Casey (which upheld a right to abortion). Kennedy declared:

The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.

He then went on to state, “Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”[vii]

Legal scholars on the other side of the debate have drawn very similar conclusions to Scalia’s. Liberal Harvard Law professor Laurence Tribe says, “Same-sex marriage, as Justice Scalia predicted in his outraged dissent, is bound to follow; it is only a question of time. . . . [T]he underlying theory and most important passages of Lawrence suggest ready (though not immediate) applicability of the holding to same-sex marriage . . . .”[viii]

In summary, a close reading of the Lawrence decision suggests that advocates of same-sex “marriage” could claim that it serves as precedent for same-sex “marriage”—but it would not inevitably do so.

---

[i] Lawrence et al. v. Texas, 123 S. Ct. 2472 (2003): 6 (page numbers cited are from the respective opinions as published in the initial Bench Opinion).

[ii] Ibid.

[iii] Ibid.

[iv] Ibid., 17-18.

[v] Ibid., 7.

[vi] Ibid., 6.

[vii] Ibid. (Kennedy), 13.

[viii] Laurence H. Tribe, “Lawrence v. Texas: The ‘Fundamental Right’ That Dare Not Speak Its Name,” 117 Harvard Law Review (April, 2004): 1945, 1949

Tags: Same-sex marriage, Vaughn Walker

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There is much to be said about U.S. District Court Judge Vaughn R. Walker’s ruling in favor of same-sex “marriage” on August 4, and we will have more analysis of the opinion in coming days and weeks.

However, some media outlets have been reporting that this ruling is unprecedented because it is the first time that a federal court has tried to strike down a state marriage amendment on federal constitutional grounds. This is completely untrue. On May 12, 2005, U.S. District Court Judge Joseph F. Bataillon issued a very similar ruling striking down Nebraska’s marriage amendment. This ruling, however, did not stand—it was struck down, unanimously, by a three-judge panel of the Eighth Circuit on July 14, 2006.

The Eighth Circuit, like a majority of courts that have ruled on this issue (including the state Supreme Courts of New York, Washington, and Maryland), declared that the state’s interest in promoting responsible procreation provided a rational basis for distinguishing between opposite-sex and same-sex couples in the definition of marriage. Yet Judge Walker’s decision dismissed this compelling argument with the casual observation, “Never has the state inquired into procreative capacity or intent before issuing a marriage license.”

The Eighth Circuit’s ruling explains why this is not a compelling argument for mandating same-sex “marriage.” Excerpts are below (citations omitted):

The State argues that the many laws defining marriage as the union of one man and one woman and extending a variety of benefits to married couples are rationally related to the government interest in “steering procreation into marriage.” By affording legal recognition and a basket of rights and benefits to married heterosexual couples, such laws “encourage procreation to take place within the socially recognized unit that is best situated for raising children.” The State and its supporting amici cite a host of judicial decisions and secondary authorities recognizing and upholding this rationale. The argument is based in part on the traditional notion that two committed heterosexuals are the optimal partnership for raising children . . . . But it is also based on a “responsible procreation” theory that justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot. Whatever our personal views regarding this political and sociological debate, we cannot conclude that the State’s justification “lacks a rational relationship to legitimate state interests.”

“Even if the classification . . . is to some extent both underinclusive and overinclusive, and hence the line drawn . . . imperfect, it is nevertheless the rule that . . . perfection is by no means required.” Legislatures are permitted to use generalizations so long as “the question is at least debatable.” The package of government benefits and restrictions that accompany the institution of formal marriage serve a variety of other purposes. The legislature — or the people through the initiative process — may rationally choose not to expand in wholesale fashion the groups entitled to those benefits.

We hope that the Ninth Circuit—and/or the Supreme Court—will follow this reasonable precedent.

Tags: Judicial Activism, Same-sex marriage

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Senator Jon Kyl—who’s one of the most effective members of the Senate—just laid out a devastating case against Elena Kagan.

In addition to all the things we’ve rightly heard so much about—don’t ask don’t tell, military recruiters at Harvard, gun control, and terrorists’ rights—he highlighted that she failed to do her duty as solicitor general when it comes to the Defense of Marriage Act (DOMA).

Kyl did a masterful job of showing that, after she made the case that when a solicitor general gets involved in a case, it must vigorously defend any federal law that is challenged in court, she was fine with the Justice Department (DOJ) disavowing Congress’ justifications for DOMA in court in the ongoing challenge to DOMA. The DOJ brief in court said that the Obama administration regarded DOMA as discriminatory and supported its repeal, and that DOMA’s purported policy justification should not survive even the most deferential and permissive judicial review.

That’s not any type of legal defense. Instead, it’s sabotaging your client’s case.

Kyl then did a fantastic job addressing two other hot-button issues with profound implications across the spectrum of constitutional interpretation—how to interpret the Second Amendment right to bear arms and the limits of federal power under the Commerce Clause. Her take on both of those issues would have terrible applications for all sorts of important issues, including family issues.

And finally, he made the point that Kagan is not qualified under traditional criteria for the Supreme Court. Although we’ve had justices with no prior judicial experience, we’ve never had one who has no judicial experience and only two years total lawyers’ experience.

All in all, a compelling case for opposing Elena Kagan’s confirmation to the Supreme Court. Well done, Senator Kyl.

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My (relatively) new FRC colleague Ken Klukowski has the lowdown over at Townhall.com:

The U.S. District Court for the Eastern District of Virginia denied the Obama administration’s motion to dismiss Virginia’s lawsuit against Obamacare. Virginia Attorney General Ken Cuccinelli filed one of the three major lawsuits against President Obama’s healthcare law, focusing on the issue that the individual mandate, requiring every American to purchase health insurance, is unconstitutional.

For the reason my coauthor and I explained in the Wall Street Journal in January and last month, the Obamacare individual mandate is clearly unconstitutional. In researching this issue for our book, The Blueprint: Obama’s Plan to Subvert the Constitution and Build an Imperial Presidency, Ken Blackwell and I found that commanding Americans to buy insurance is not authorized by even the most liberal precedents of the Supreme Court interpreting the Commerce Clause, the Taxing and Spending Clause, or the General Welfare Clause.

Read the whole thing…

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There’s a lot of buzz about Will Saletan’s incisive analysis of Elena Kagan’s role in shaping, from the White House, the “medical” conclusions of the American College of Obstetricians and Gynecologists on the partial-birth abortion method.  (See full article, below.)  The criticism of Kagan and ACOG is certainly welcome, especially coming from this “pro-choice” writer at this left-leaning magazine.

But Saletan is dead wrong on one central point:  Kagan did substantively change the ACOG statement with the sentence she dictated to the organization.  Before Kagan’s interference, the ACOG statement read:

“a select panel convened by ACOG could identify no circumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman.”

Before Kagan, partial-birth abortion was equal to or lesser than other methods in ACOG’s view.  With the addition of Kagan’s wording that it “may be the best” method “in a particular circumstance,” partial-birth abortion now became potentially better than other methods in the official view of ACOG.  Saletan apparently doesn’t understand that making it potentially best in some unnamed hypothetical situation was equivalent to making it definitively best in the view of the reviewing courts.  Even a cursory reading of the lower court rulings shows that the Kagan “best” language was absolutely key to the courts’ reasoning in overturning the bans.

Ultimately, of course, the Supreme Court got past this politicized medicine and got the ruling right.  But this revelation should be a permanent black eye for ACOG’s reputation on any abortion-related issue in the future, and is proof that Kagan is a zealous pro-abortion political animal trying to disguise herself in judge’s robes.

Continue reading »

Tags: Abortion, ACOG, Elena Kagan, Supreme Court

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“As one who has spent a number of years in uniform, as a Marine and a police officer, my remarks will focus primarily on Ms Kagan’s treatment of military recruiters at Harvard Law School.

“As has been pointed out while Dean of the law school she defied the requirements of a federal law, known as the Solomon Amendment. Her violation of this federal law was motivated by her vehement opposition to the military’s prohibition against open homosexuality.

“This protracted incident, combined with the just made public report of her re-writing of the medical findings of ACOG on partial birth abortion as advisor in the Clinton White House, raises doubts as to whether she possesses the requisite judicial temperament and impartial nature required of a Supreme Court justice.

“We do not need a justice on the Supreme Court who sees it as her life mission to write the homosexual version of Roe v. Wade by striking down one-man, one-woman marriage across America. These positions and the temperament accompanying them make her unfit to sit as an associate justice on the Supreme Court. I urge the Senate to reject her nomination.”

Perkins’ complete prepared testimony can be viewed here.

Tags: Elena Kagan, Supreme Court, Tony Perkins, U.S. Senate

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In a heated exchange with the Senate Judiciary Committee yesterday, Attorney General Eric Holder stood by his decision to jeopardize–not only New York City, but 200 years of American tradition—by launching the trial of the century against 9-11 mastermind Khalid Sheikh Mohammed and five other terrorists in the Big Apple.   Holder insists that New York is the best “venue to obtain justice,” but as Senators on both sides of the aisle argued, prosecuting terrorists minutes from the graveyard they dug for 3,000 innocent U.S. victims is “dangerous,” “misguided,” and “unnecessary.”  Sen. Lindsey Graham (R-S.C.) was the most visibly upset.  “We’re making history here, Mr. Attorney General…bad history.”  Rather than leave the terrorists’ fate to a military tribunal, Holder is rolling the dice with a jury of civilians who–with a single “not guilty” verdict–could exonerate men who committed an act of war against our nation.  Essentially, the decision boils down to a global PR stunt to showcase America’s fairness.  It’s more than a little ironic, then, that both Holder and President Obama have already determined the outcome.  “Failure is not an option,” Holder said.  If that’s the case, why bother with a trial that endangers the city, shows disdain for our military, prolongs the process, and wastes millions of taxpayer dollars ($75 million a year for security alone)?  This entire charade besmirches the memory of every 9-11 victim and family–and, more than that, it disrespects every soldier, living and dead, who put on a uniform to fight in the war these villains started.

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This from an Associated Press story about California’s defense of Prop 8:

The governor and attorney general, who are supposed to defend state laws, submitted separate but similar filings Friday saying they would leave it to the conservative legal group the Alliance Defense Fund to take the lead in defending California’s gay marriage ban.”

How completely revolting.  The people of the State of California pass an amendment to the State Constitution that is upheld by the State Supreme Court and neither the attorney general nor the governor will defend the amendment.

The governor and the attorney general should be impeached — or recalled.  Whether you love or loathe Proposition 8, it should be clear that executive branch of the California should defend the State’s constitution in court.  To refuse to do so constitutes complete lawlessness.

Perhaps, some legislator can attempt to appropriate funds for Alliance Defend Fund’s legal efforts.  It only seems fair that ADF should be reimbursed for doing the government’s work.

Furthermroe, the governor and attorney general should save everyone some time and let the State know which laws they find it PC to defend.  This might be a useful flash page to set up on the AG’s website.

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Nineteen years on the U.S. Supreme Court and David Souter retires like Rodney Dangerfield: He gets no respect. When the liberal press does praise him, it’s for his logic. Really? Let’s parse the premier sample of his logic. He’s credited with the co-authorship of what has been termed the “Mystery of Life” passage in the 1992 ruling in Planned Parenthood v. Casey:

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Justice Scalia has made wicked sport of this passage. “Ah, the sweet mystery of life passage…” he says–and then he pounces: “…the passage that ate the rule of law.” Ate it, the co-authors-Souter, O’Connor, and Kennedy–did indeed.

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Tags: David Souter, SCOTUS

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Say what you will about Supreme Court nominee Sonia Sotomayor, her personal story is a compelling one.  From the sickly daughter of a widow in the South Bronx projects to the Pyne Prize at Princeton, the Yale Law School, and almost two decades as a federal judge is a remarkable journey.  Yet, one should ask how much of Judge Sotomayor’s success “against-the-odds” came from her high-quality preparation at in the Catholic school system.  Would her story have turned out differently had she attended a soon-to-be-blighted South Bronx public high school rather than the rigorous Cardinal Spellman?

That said, how many future Sonia Sotomayors are among the 1,715 DC students currently enrolled in private and parochial schools through the DC Opportunity Scholarship voucher program?  How many will still be given the same chance to excel once the program is terminated in 2010?  If President Obama is serious about the importance of Judge Sotomayor’s biography, he should work even harder to make sure that DC children from similar backgrounds can have the same opportunities.

Tags: Sonia Sotomayor, Supreme Court

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Here is Tony Perkins’ statement on President Obama’s nomination of Judge Sotomayer. Her record makes one wonder… is she a legislator or a jurist?

FOR IMMEDIATE RELEASE: May 26, 2009 CONTACT: J.P. Duffy or Maria Donovan, (866) FRC-NEWS

Sotomayor: A Policy Maker or a Jurist?

Washington, D.C. – This morning President Obama announced his nominee to the nation’s highest court, Judge Sonia Sotomayor of the United States Court of Appeals for the Second Circuit. Family Research Council Action President Tony Perkins released the following statement:

“President Obama has chosen a nominee with a compelling personal story over a judicial pick with a solid constitutional judicial philosophy. A compelling personal story is no substitute for allegiance to the Constitution and its sound application to public life.

“Judge Sotomayor’s failure to premise her decisions on the text of the Constitution has resulted in an extremely high rate of reversal before the high court to which she has been nominated.

“With that fact in mind Judge Sotomayor appears to subscribe to a very liberal judicial philosophy that considers it appropriate for judges to impose their personal views from the bench. President Obama promised us a jurist committed to the ‘rule of law,’ but, instead, he appears to have nominated a legislator to the Supreme Court.

“For example, in 2001 when delivering the Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California-Berkeley Law School, Sotomayor stated: ‘I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.’

“Needless to say, that statement is troubling – if not offensive – on many levels. As the distinguished legal reporter Stuart Taylor of the National Journal observed about that speech and of Sotomayor, ‘her thinking is representative of the Democratic Party’s powerful identity-politics wing.’

“In a 2005 panel discussion at the Duke University Law School that can be seen on YouTube and cable news channels, the judge stated that the U.S. Court of Appeals is ‘where policy is made.’

“With all due respect to Judge Sotomayor, our constitution states otherwise and public surveys indicate that the American public understands this constitutional principle and want judges who interpret the law and do not act as life-tenured judicially empowered social workers.

“The Family Research Council expects the members of the Senate Judiciary Committee and the entire Senate to fully examine and publicly present an accurate picture of Judge Sotomayor’s judicial philosophy to the American public before they vote on her nomination.”

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Tags: Obama, SCOTUS, Sonia Sotomayor, Supreme Court

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Pro-homosexual activist groups like Lambda Legal began pressing President Obama, even before he was inaugurated, to appoint homosexuals as federal judges, and now that there is a Supreme Court vacancy, the possibility of the first “openly gay or lesbian” Supreme Court justice is being discussed in the media and (intensely) in the blogosphere.

Comments by Sen. Jeff Sessions, by a spokesman for Focus on the Family, and by me, suggesting that a history of same-sex attractions would not necessarily, automatically, and a priori disqualify a candidate for the court led a blogger for Politico to ask, “Is [the] right softening on gay judges?”

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Tags: Homosexual, Supreme Court

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