Category archives: States

Pennsylvania Court Delivers Two Pro-Life Victories

by Mary Szoch

March 31, 2021

This past week, the Pennsylvania Commonwealth Court issued a huge victory for all Pennsylvanians—born and unborn. In a 6-1 decision, the Commonwealth Court both upheld a 1985 Pennsylvania law stating that state taxpayer dollars could not be used for abortion except in the case of rape, incest, or to save the life of the mother and ruled that “Reproductive Health Centers,” in this case, three Planned Parenthood affiliates and three stand-alone abortion clinics, “lack standing to initiate litigation to vindicate the constitutional rights of their patients enrolled in Medical Assistance.” The abortion businesses who were the plaintiffs in the case will appeal to the Pennsylvania Supreme Court.

The Commonwealth Court’s ruling is cause for celebration for several reasons. First, the Commonwealth Court affirmed the rights of Pennsylvanians to have a law prohibiting tax dollars for elective abortions. The 1985 law is essentially Pennsylvania’s version of the Hyde Amendment. This amendment, which passed in 1976, had overwhelming bipartisan support for over 40 years—including support as recent as 2019 from now President Joe Biden—but it is now under attack by Democrats and President Biden. Neither the 1985 Pennsylvania law nor the Hyde Amendment prohibit abortions—both simply state that taxpayer dollars will not be used to fund abortions.

The vast majority of Americans are supportive of this law. In fact, a 2020 Marist poll found that 60 percent of Americans, including 37 percent who identify themselves as pro-choice, oppose taxpayer funding of abortions. Americans recognize that taxpayers who correctly believe abortion is the killing of an innocent unborn baby should not be forced to pay for this practice. Hopefully, the Pennsylvania Supreme Court will uphold this ruling and it will be repeated by other state supreme courts who face similar challenges from abortion providers.

Second, the court ruled that abortion businesses do not have standing to challenge a prohibition on taxpayer dollars paying for abortions. In doing so, the court recognized that the key stakeholders in a case regarding abortion are not businesses who stand to profit from the practice of abortion, but instead, pregnant women who intend to have an abortion. This is a major step in limiting the abortion industry’s exploitation of women in Pennsylvania. 

Under the Pennsylvania standard for standing, the Commonwealth Court ruled that they would be required to determine if patients “on whose behalf Reproductive Health Centers purport to speak even want this assistance.” Unfortunately, however, Pennsylvania has a different standard for standing than the federal government. As was seen in the Louisiana case June Medical vs. Russo, the Supreme Court has allowed abortion businesses to file lawsuits on behalf of the women they proport to serve. In doing so, the Supreme Court allowed Louisiana abortionists to continue to profit from putting the lives of women receiving abortions at risk—despite the abortionists’ inability to demonstrate that any affected women actually supported their position.

While the Pennsylvania Commonwealth Court’s ruling is not indicative of how the United States Supreme Court would rule in such a case, and while it may be overturned by the Pennsylvania Supreme Court, for now, it is a pro-life victory. It is a ruling that recognizes the conscience rights of Pennsylvania taxpayers while limiting the ability of abortion businesses to speak for women. Pray that the Pennsylvania Supreme Court upholds this ruling and that other states’ pro-life efforts are buoyed by this victory.

Family Research Council has developed a series of maps to help Americans understand their state’s abortion laws. To see where your state stands with regard to funding abortion businesses, click here.

Arkansas Moves to Protect Children from Gender Transition Procedures

by Chantel Hoyt

March 25, 2021

The Arkansas Senate is currently considering HB 1570, the Save Adolescents from Experimentation (SAFE) Act. This bill aims to protect children from invasive and untested procedures associated with “gender transition,” as these types of procedures pose serious health risks and cannot be fully reversed. Such drugs and procedures are based on the unscientific theory that some individuals can be born in the “wrong” body. Eighteen states have introduced similar legislation so far in 2021.

The Arkansas SAFE Act prohibits health care professionals from performing gender reassignment surgeries or providing puberty-blocking drugs and cross-sex hormones for the purpose of gender transition to individuals under the age of 18. Health care professionals found to be in violation of this policy would have their medical licenses revoked. The bill also prohibits medical insurance from covering such treatments for minors. The bill is sponsored by Rep. Robin Lundstrum of Arkansas’ 87th district (Benton and Washington counties) and recently passed the House floor with a vote of 70-22. It is currently awaiting action in the Senate. 

The liberal news media has decried this legislation’s so-called “assault” on transgender rights.  Back in January 2020, when only six states had introduced such legislation, CNN quoted Ryan Thoreson, a Yale law school lecturer and LGBT rights researcher, as saying, “There are alarming signals that this could pass in conservative states.” Thoreson also referred to these bills as part of a series of “attacks on transgender youths” by lawmakers and said that the proposed laws would restrict young people’s access to “basic health care.” The CNN article also insisted that bills like these could “prove devastating to transgender children” and suggested that children who cannot obtain such procedures are more likely to commit suicide.

You don’t have to be a physician to know that describing gender reassignment surgery and hormone therapy as “basic health care” is ludicrous. In what other instance would the suppression of natural bodily development and removal of healthy or non-diseased body parts from children (or anyone for, that matter) be considered permissible, let alone essential health care? 

Transgender activists typically argue that securing access to gender transition procedures is really about the child’s mental health, theorizing that these procedures are the only thing that will cure their gender dysphoria and reduce their distress. This idea might be more compelling if it had any scientific evidence to back it up. We currently have no good evidence that these procedures even accomplish their stated purpose—improving children’s mental health. FRC argues that such evidence would be “absolutely necessary to justify such radical and unnatural physical intervention.”

This lack of evidence, combined with the fact that most children with gender dysphoria will outgrow their condition and not identify as transgender adults, makes the legality of performing gender transition procedures on children and activists’ advocacy for said procedures even more troubling. For most kids with gender incongruity, puberty is the cure, not the disease.

The number of proposed bills aimed at protecting minors from the harmful effects of gender transition procedures has seen a sharp rise in the past two years. This trend, combined with conservative wins in state legislatures in the most recent election, is cause for optimism. Hopefully, states will be able to pass common-sense legislation that protects children from such harmful practices, nurturing them rather than sacrificing their health and well-being on the altar of unscientific transgender ideology. 

Based on its recent success, the Arkansas SAFE Act could very well be the first bill of its kind to pass a state legislature, but it needs your help! If you (or your family and friends) live in Arkansas, please speak up now and ask your elected officials to protect minors from the growing pressure to treat puberty like a disease.

Connecticut Seeks to Stifle the Voice of Pregnancy Resource Centers

by Mary Szoch

February 15, 2021

Last week, the Connecticut State Senate considered SB 835, “An Act Concerning Deceptive Advertising Practices of Limited Services Pregnancy Centers.” Contrary to its title, this bill is not about deceptive advertising. In fact, there is no substantial evidence that clients seeking services at Connecticut pregnancy resource centers (PRCs) have been or currently are being deceived. No, this bill is about silencing PRCs.

SB 835 singles out PRCs as the only organizations that are required to prevent advertising they know “or reasonably should know” to be deceptive “whether by statement or omission.” The legislation places the pro-abortion attorney general—who testified in favor of the legislation—as the arbitrator of “deceptive advertising,” and gives him the authority to force PRCs to “correct” their advertising and pay a fine.

This bill is a clear violation of the First Amendment rights of PRCs. It makes it harder for women who are unexpectedly pregnant to know what their choices are, and it places the state in the position of promoting abortion over childbirth.

Despite what this bill implies, there are already many generally applicable laws at the state and federal level preventing deceptive advertising. What makes SB 835 unique is that it deliberately—and unjustly—singles out PRCs as the only organizations required to prevent advertising they know “or reasonably should know to be deceptive.” Nothing in the bill prevents abortion businesses from engaging in deceptive advertising practices. For example, Planned Parenthood—whose very name implies that a pregnant woman visiting the clinic will receive balanced information regarding the resources available to her if she would like to parent—is not obligated in any way to clarify in their advertising that their core mission is expanding abortion. PRCs are targeted for one reason only—to stifle their speech.

If this were just another deceptive advertising law, it would not target an ideologically unified group of service providers who take a position on one of the most controversial topics in the country. SB 835’s vague wording—“whether by statement or omission”—allows the pro-abortion attorney general (who is so pro-abortion and anti-woman that he doesn’t think abortionists should be required to have hospital admitting privileges) to decide which words a PRC omitted. Clearly, the attorney general is attempting to bully PRCs into only advertising what he would choose to advertise—which is definitely not help and support for women who feel pressured into having an abortion. This is an intimidation practice with the prevention of pro-life speech as its goal. It is unconstitutional.

In 2018, California passed a law that forced PRCs to 1) advertise that the state offered free abortions and 2) post a notice stating they were not medical providers. The U.S. Supreme Court ruled that California’s law was unconstitutional and prohibited the state from directly demanding this speech. Although SB 835 is not directly demanding speech from PRCs, through the vague wording “by statement or omission,” it is indirectly attempting to force them to make those same statements. The Supreme Court has already ruled this is unconstitutional.

Singling out PRCs for heavy fines because they do not provide or refer for abortions compels them to advertise in a way that significantly limits their potential clients. Many women who find themselves unexpectedly pregnant feel afraid, alone, and unsure of where to turn. PRCs do not coerce women into giving birth. Rather, they give a woman all the information available to her and allow the woman to make her own decision, knowing that she can always turn to the PRC for support.

Unlike abortion businesses, PRCs do not make money when a client chooses life. In 2019, PRCs provided $270 million in services at virtually no charge, and they provided services to women regardless of whether they chose life or abortion, offering more than 21,000 women post-abortion healing services.

PRCs do not exist to make a profit; they exist because they care about women and their children. According to a Guttmacher Institute study, women most frequently choose to have abortions because having a child would “interfere with a woman’s education, work or ability to care for dependents (74%); that she could not afford a baby now (74%), and that she did not want to be a single mother or was having relationship problems (48%).” The resources offered by PRCs help women rise above and change these circumstances. The support of PRCs empowers women to choose life for their children.

There is no good reason to attack centers that have such a positive impact on society. Doing so places the state in the position of promoting abortion practices—who stand to profit from a woman’s decision to have an abortion—above centers offering women the tools they need to choose life.

The Connecticut state legislature should recognize that SB 835 is an attack on one of the foundations of American liberty—freedom of speech—and as such, it is unconstitutional. More importantly, the state legislature should recognize that SB 835 harms women in need.

Kansas Moves to Protect Life in Its State Constitution

by Quena Gonzalez

January 29, 2021

Great news! Yesterday, the Kansas Senate followed the House in voting to send the “Value Them Both Amendment” to the state’s voters, who will decide in the 2022 primaries whether or not to amend the state constitution to clarify that there is no right to abortion or abortion funding.

This is one of a number of similar pro-life developments taking place in states around the country as voters make their voices heard. Iowa is currently considering a similar measure, which would go before voters in 2024 if it is passed by both chambers this year (as expected) and passed by both chambers again in 2023.

The Kansas amendment is similar to amendments enacted in Louisiana (ratified by voters 62%-38% in 2020), Alabama (59%-41% in 2018), West Virginia (52%-48% in 2018), Tennessee (53%-47% in 2014), and Arkansas (52%-48% in 1988). FRC was proud to support those efforts.

May we continue to see these and other measures advanced around the country as states protect life. For more on the states of state pro-life laws, see our maps. To receive alerts when it’s time to make your voice heard in your state, sign up for FRC Action alerts.

Of Dogs and Unborn Babies

by Mary Jayne Caum

November 19, 2020

For the last two weeks, fallout from the election chaos has dominated the news cycle. Because of this, state and local initiatives have largely gone unnoticed. But two important laws were on the ballot in Colorado: (1) Proposition 115 and (2) a repeal of Denver’s pit bull ban.

Proposition 115 was a state-wide initiative to ban late-term abortions throughout Colorado. If successful, it would have been illegal to commit an abortion in Colorado once an unborn child reaches 22 weeks gestation. Proposition 115 specified that committing an abortion on an unborn child who has reached at least 22 weeks gestation would be a misdemeanor and any abortionists who violated this law would be subjected to professional penalties including suspension of their medical license. Of course, the measure did exempt from prosecution the woman who underwent the abortion. It also allowed an abortion after 22 weeks gestation when the life of the mother was at risk. Despite scientific and philosophical support for banning these late-term abortions, Colorodans voted to continue the dangerous and deadly practice.           

In Denver, Colorado, another measure was in the hands of the citizenry. For 30 years, it has been illegal to own a pit bull in Denver. This law banning pit bulls resulted from several pit bull attacks in Colorado in the 1980s, and the stigma surrounding certain breeds including pit bulls. For years, pit bulls have been stigmatized as an inherently aggressive breed waiting to tear you limb from limb. However, the facts simply do not align with this myth. The National Geographic reports that there is no scientific evidence to support the idea that pit bulls are inherently aggressive and dangerous. Changing attitudes towards pit bulls combined with widespread initiatives to destigmatize the breed resulted in Denver’s decision to lift the ban on pit bulls. Personally, this author supports Denver’s decision to allow pit bulls. As a dog mom, it warms my heart to see dogs rescued, given a chance, or destigmatized. While I applaud the people of Denver’s decision to legalize pit bulls, I do find Colorado’s stance on human life and animal life troubling.            

An unborn child is viable somewhere around 22-24 weeks gestation. Neonatal medicine defines viability, “as the gestational age at which there is a 50% chance of survival with or without medical care.” Therefore, last week in Colorado, the voters elected to continue aborting viable babies while lifting a ban on pit bull ownership in Denver. Critics may claim I am comparing apples and oranges. Colorado is not populated by Denver alone. However, almost 6 million people live in Colorado, while almost 3 million people live in metro Denver. So it is safe to say that the attitudes of individuals in metro Denver represents the mindset of at least half of Colorado. With that in mind, let us return to the point of this article: the inherent worth of a child vs. the inherent worth of an animal.

As a Christian, I believe both man and beast have value. However, man is worth so much more. Because humans are made in the image of God, we have inherent worth and dignity. Our value is so great, God sacrificed His holy and glorious Son and raised Him from the dead to purchase us from the grips of sin and death. While reflecting upon His creation, God deemed nature and its animals “good” while praising man as “very good.” No matter how much we try to devalue life in our society, men and women are inherently priceless and imbued with a dignity God did not bestow on any of His other creations.

This is not to say we should be cruel to our animals. One of the wisdom books in the Bible espouses its readers, “the righteous care for the needs of their animals.” Therefore, according to God’s Word, one of the distinguishing features of a righteous person is the manner in which he treats animals. For this reason, I rejoice when another shelter dog is rescued, a dog fight organizer is prosecuted, and a pit bull is allowed to be loved.

However, we cannot confuse our duty to properly care for animals with the inherent worth and dignity of our fellow man. After creating man, God exhorted Adam to have dominion over the animals God created. Abortion fundamentally rejects the dignity and worth of every human being. Instead of recognizing the humanity of every unborn child, we devalue and sacrifice our unborn children in the name of convenience, preference, and career advancement. As a society, we cannot continue down this path of devaluing human life. 

While we pat ourselves on the back for being progressive and rejecting the fallacious notion that certain dog breeds are inherently aggressive, let us not forget our fellow man. It is a well known fact that when an abortion is committed against a child around 22 weeks gestation, the abortionist’s preferred method of murder is dismemberment abortion (also known as D&E: dilation and evacuation abortion). Although Denver was correct to statutorily reject the idea that pit bulls inherently desire to tear humans limb from limb, Colorado was wrong to leave unborn infants vulnerable to abortionists who tear these innocent children limb from limb.

Sadly, I believe the prophetic words of G.K Chesterton have been realized, “Wherever there is animal worship there is human sacrifice.” Let us reverse this trend of human sacrifice. Let us honor our Creator by protecting His creation: both animal and human. While enjoying the companionship of our furry friends, we should continue to recognize the inherent worth and dignity of each human individual—born and unborn.

Mary Jayne Caum works in State & Local Affairs at Family Research Council.

Amidst a Global Pandemic, California Legislators Seek $15 Million for Transgender Hormone Therapy and Dance Classes

by Peter Sprigg

May 13, 2020

Peter Sprigg, FRC’s Senior Fellow for Policy Studies, submitted the following letter on May 12, 2020, to the California Legislature in opposition to AB 2218, the “Transgender Wellness and Equity Fund.”

***

Dear California Legislators:

I am writing to urge that you oppose Assembly Bill 2218, which would establish a “Transgender Wellness and Equity Fund” with an appropriation of $15 million. I am writing on behalf of Family Research Council (FRC), a national non-profit public policy organization representing tens of thousands of Californians, and whose issue portfolio includes human sexuality.

In particular, we believe that it is inappropriate to provide taxpayer dollars

to a hospital, health care clinic, or other medical provider that currently provides gender-affirming health care services, such as hormone therapy or gender reassignment surgery, to continue providing those services, or to a hospital, health care clinic, or other medical provider that will establish a program that offers gender-affirming health care services . . .

No “hormone therapy” (neither puberty-blocking hormones nor cross-sex hormones) has been approved by the U.S. Food and Drug Administration (FDA) for the purposes of facilitating gender transition. Fenway Health, which serves the LGBT community in Boston, writes that “no medications or other treatments are currently approved by the Food and Drug Administration (FDA) for the purposes of gender alteration and affirmation.” A 2018 article in the journal Transgender Health reiterated that “there are no medications or other treatments that are FDA-approved for the purpose of gender affirmation.” And the American Medical Association’s Council on Science and Public Health reported that “steroidal hormones,” “GnRH analogs” (puberty blockers) and “antiandrogens” are all used “off-label” for “gender re-affirming therapy”—because their use “lacks scientific evidence.” While it is not illegal to use drugs “off-label” in certain instances, the lack of proof that using these hormones for gender transition is safe and effective is a strong argument against the state funding these largely experimental treatments.

Similarly, evidence does not support the assertion that gender reassignment surgery is “medically necessary.” In 2016, the Centers for Medicare & Medicaid Services under the U.S. Department of Health and Human Services (CMS) declined to issue a new “national coverage determination” (NCD) that would mandate coverage for such surgery under Medicare, declaring that “there is not enough high quality evidence to determine whether gender reassignment surgery improves health outcomes.” CMS examined 33 studies, but found that all had “potential methodological flaws,” and that “[o]verall, the quality and strength of evidence were low.”

Even the evidence that is available does not demonstrate that gender reassignment surgery is effective at achieving its fundamental goal—improving the long-term mental health of individuals. Patients in the best studies “did not demonstrate clinically significant changes” after surgery. One of the strongest studies, out of Sweden, showed a suicide rate among post-surgical transgender patients that was 19 times that of the general population.

In addition to directly funding procedures of questionable medical value (as well as “guided meditation” and “dancing, painting, and writing classes”), this bill would also fund programming that essentially amounts to ideological indoctrination, in the form of “trans-inclusive best practices” and the creation of “educational materials” and “capacity building training.”

It also seems ironic that the sponsors of this legislation, who I presume would support laws to prohibit “discrimination” on the basis of “gender identity,” are actually mandating such discrimination by giving favored treatment to organizations that meet a numerical quota of officers, board members, or a fiscal sponsor who themselves “identify as TGI” (“transgender, gender nonconforming, or intersex”).

Finally, it seems inconceivable that during a crisis caused by a global pandemic, with tax revenues shrinking and emergency expenditures rising, the California Legislature would even consider investing time or money in a program that would have to be considered a luxury even in normal times, and even if it were worthwhile (which, for the reasons cited above, I believe it is not). When, at this writing, nearly 70,000 Californians have become infected with the novel coronavirus and nearly 2,800 have lost their lives, it would reflect misplaced priorities to be appropriating money to support the programs listed above.

I urge you to oppose AB 2218.

Sincerely,

Peter Sprigg
Senior Fellow for Policy Studies
Family Research Council
Washington, D.C.

Why California Senate Bill 320 is Harmful to Women’s Mental Health

by Sarah Stewart

July 13, 2018

 

The California legislature is considering a bill, which would endanger the mental health of many of its college students, all in the name of women’s health. Senate Bill 320 was introduced by Senator Leyva with the intended purpose to make medication abortions readily accessible to women on public college campuses. The bill establishes a fund to help make the facilities ready to provide these abortions by January of 2019. The bill’s author claims that these abortion services are necessary to ensure women’s health and success in college. This language appeals to many college age girls, who may not fully understand the emotional ramifications of undergoing an abortion procedure. Many girls will not stop to question why an abortion would allow them to be successful, or if it will, in the long-term, lead instead to greater pain and regret.  Instead, this bill will encourage them to make a life altering decision with little reflection, and, by the time they recognize that success alongside motherhood is possible, it will be too late to change their minds. We should pause before advocating to a generation of young women that their success in any way may require sacrificing the life of their own child.

The bill keeps women in the dark as to what is really at stake. The Senate Health Committee bill analysis states, “women should not have to wait additional time or travel long distances when they may have already decided to end their pregnancy.” The California legislative website provides six bill analyses with similar claims, all of which address the physical safety for women who undergo this procedure. Yet neither the bill nor the analyses provided address the mental health concerns caused by abortion. If this bill is intended to better women’s health in some way, their psychological health should absolutely be made a factor in the discussion. This is precisely what is being ignored.

A recent analysis in the British Journal of Psychiatry of 22 studies has shown that having an abortion negatively impacts women’s mental health. One of the studies analyzed had as its control group women with unintended pregnancies, those who underwent an abortion fared worse mentally than those who carried their unintended pregnancies to term. The analysis of all 22 studies detailed that women who were post-abortive were more likely to have issues with substance abuse and had greater anxiety, depression, and suicidal thoughts than non-abortive women. In addition a study in the Journal of Youth and Adolescence was conducted of adolescents who had undergone abortion procedures. While it did not study suicide rates, it demonstrated an increase in need for counseling, as well as an increase in sleep disorders, and substance abuse. Even so, none of this was discussed in either the legislation or the bill analyses. Mental health should be an important concern for those advancing this legislation, but it is not, and the statistics do not support abortion as being beneficial for women’s mental health. This needs to be a significant part of the discussion in any bill, which claims to advocate for women’s health and success in college.

With all abortions, women face increased likelihood of mental health issues, but there is an element unique to medication abortions. Medication abortions are fundamentally different from surgical abortions. One procedure takes place in a facility with a medical practitioner, while in the other the mother is often alone at home during this stressful and emotional experience. She will have to dispose of and see the remains of her aborted child.

Medication abortions are a two-step process. After it is determined that the woman is pregnant, she takes the first pill. This blocks necessary hormones and breaks down the lining of the uterus. This will eventually kill the baby. After 6-72 hours, the woman then takes a second pill, and causes her to start having contractions, which leads to the uterine lining as well as the unborn child to be expelled from her body. The woman often at home alone during this traumatic experience, or, in this case, quite possibly alone in her dorm room. She will go through this second stage for hours. She will be in pain. She will most likely be alone, and, quite possibly, she will see her aborted child. This procedure can only be conducted for the first ten weeks of pregnancy. By that point, the unborn child will quite clearly look like a very small baby, and the mom will be able to see the miniature fingers and toes. The mother, a young college student, will be responsible for disposing of the remains of her child.[1] Miscarriages, while undesired, are traumatic. For a young woman to go through a medical abortion alone  has great potential to take a great emotional toll.

According to Planned Parenthood, medication abortions are similar to an “early miscarriage” or a “really heavy period.” This, however, ignores the fact that woman has intentionally taken medication that has led to the death of her child. For this reason, medication abortions are significantly different from a woman’s menstrual cycle. To compare it to miscarriage ignores this, and it is a slap in the face to all parents who have lost their child to miscarriage and have been deeply devastated by the process. The California Senate Committee on Health’s analysis also uses language making this comparison. It states, “The two-pill process leads to a result similar to a miscarriage.”  

Pro-life advocates need to first stand against this legislation and urge their representatives to vote against its implementation. They also need to be aware and educate others that it is possible to reverse medication abortions. For the best possible result, treatment should be administered within 24 hours, but patients are accepted up until 72 hours after the first pill has been taken. With this treatment, there is a 55 percent success rate for women who decide that they want to reverse the abortion, and there is no record of birth defects. It will be essential for pro-life advocates to get this information to college students in California. Finally, they need to be ready to care for post-abortive women. They will need to care for the young mothers, who are themselves victims of abortion and help them through the long healing process.


[1] Randy Alcorn. Why Pro-life? Caring for the Unborn and Their Mothers. (Peabody, MA: Hendrickson Publishing Marketing, LLC, 2012) 18.

Expanding the Definition of “Parent” Expands the Power of the State

by Peter Sprigg

September 2, 2016

New York’s highest state court, the Court of Appeals, ruled August 30th that the former lesbian partner of a woman who gave birth (via artificial insemination) while the couple was cohabiting could qualify as a “parent” for the purpose of seeking custody and visitation rights (Matter of Brooke S.B. v. Elizabeth A. C.C.).

In light of the 2015 decision of the U.S. Supreme Court to order a fifty-state redefinition of “marriage” to include same-sex couples (Obergefell v. Hodges), this may seem like something inevitable—merely a legal mopping-up operation. Actually, it is far more troubling, with implications that extend far beyond same-sex couples.

New York’s Domestic Relations Law says that “either parent” of a child living in the state may apply to a court requesting “the natural guardianship, charge and custody of such child.” In a case similar to the current one 25 years ago (Matter of Alison D. v. Virginia M.), the same court had ruled that “a biological stranger to a child who is properly in the custody of his biological mother” has no standing to seek visitation. Despite having upheld it as recently as 2010, the court explicitly overruled Alison D. this week.

In part, the decision was based on the fact that during the period the couple was together (2006-2010, with the baby boy being born in 2009), same-sex couples could not yet legally marry in New York. According to the opinion, the couple “lacked the resources to travel to another jurisdiction” to enter into a marriage or similar “legal arrangement.”

One is tempted to say that they must have been quite destitute—since the first state to grant civil marriage licenses to same-sex couples (in 2004), Massachusetts, borders on New York state. By the time the child was born, in June 2009, Massachusetts had repealed a 1913 law that had initially prevented many out-of-state couples from marrying there; and New York’s Gov. David Paterson had ordered state agencies to recognize same-sex unions from other states.

In fairness, though, the couple apparently did live in Chautauqua County—at the far western end of the state, about 400 miles from Massachusetts. However, it is only a little over 100 miles from Niagara Falls, Ontario—which was also giving marriage licenses to same-sex couples from the U.S. Meanwhile, New York’s high court had already recognized a right of “second-parent” adoption even for unmarried partners of a biological parent in a case decided in 1995.

All this is to say that, even for a same-sex couple, it may not have been so difficult to establish a legal family relationship by a more traditional means—either a civil marriage or legal adoption.

Family Research Council (FRC) promotes the ideal of the “natural family.” In the natural family, a man and a woman commit to one another in marriage, and their sexual union bears its natural fruit in the birth of children who are biologically related to both parents. Support for the natural family is not just based on abstract principle—there is abundant social science research showing that it tends to result in the best outcomes for children (see this recent blog post reviewing the evidence).

However, we realize that the natural family is not universal, and recognize that parental relationships are sometimes formed without marriage (as in out-of-wedlock births) or without a biological relationship between parent and child (as in adoption). These parents should have their rights respected by the state just as much as those in the more traditional natural family.

However, these have historically been the limits of how legally-recognized “parental” relationships may be established. The court’s decision in Brooke B. smashes through those limits.

Only one of the New York judges, Eugene Pigott, fully acknowledged this. Although he concurred with the outcome of the case, based on its “extraordinary circumstances,” he disagreed with the decision to overrule Alison D. “I would retain the rule that parental status under New York law derives from marriage, biology or adoption,” Pigott wrote. Until now, he said, “Our Court … rejected the impulse to judicially enlarge the term ‘parent’ beyond marriage, biology, or adoption.” Instead, they had “consistently interpreted it in the most obvious and colloquial sense to mean a child’s natural parents or parents by adoption.”

The argument for expanding the definition of “parent” to include “de facto parents” who have lived with, cared for, and formed a close personal relationship with a child is simple—namely that it may be “in the best interests of the child” to preserve that relationship even if the adult couple breaks up. This sounds emotionally appealing—but the problem is what it means for parental rights. While parental rights are not absolute—in the case of serious abuse, for example, a parent may be declared “unfit” and have those rights severed—they are normally entitled to great deference.

The court did quote from its 1991 decision in Alison D., which said that “[t]raditionally … it is the child’s mother and father who, assuming fitness, have the right to the care and custody of their child,” and granting visitation to a “de facto” parent “would necessarily impair the parents’ right.” Without a biological or adoptive connection to the child, the former partner has no right “to displace the choice made by this fit parent in deciding what is in the child’s best interests.”

The New York court claimed it was still protecting this “substantial and fundamental right” (which it acknowledged as “perhaps the oldest of the fundamental liberty interests”). It did so by saying that it was only recognizing the “parental status” of a non-biological, non-adoptive partner where the person “proves … that he or she has agreed with the biological parent of the child to conceive and raise the child as co-parents.”

This limitation is small comfort. Libertarians inclined to see this as another step toward “freedom” or “equality” for all sexual preferences, or conservatives inclined to shrug it off as the inevitable consequence of Obergefell, are missing the larger point—which is a massive expansion of the power of the state in general, and of judges in particular.

Judge Pigott addressed the latter point, noting that “other states had legislatively expanded the class of individuals who may seek custody and/or visitation of a child.” In fact, New York had done the same, explicitly extending it by statute to siblings or grandparents—but not to those in the position of the petitioner. If the result seems unfair, “such criticism is properly directed at the Legislature;” but judges had, until now, “refused to undertake the kind of policy analysis reserved for the elected representatives of this State.”

In my view, however, the Legislature should not further expand the definition of “parent,” either. The existence of the natural institution of the family is an inherent check upon the power of the artificial institution of the state. Even when the state does create a parental relationship through a legal act (adoption), it does so only when the natural parents are absent, or there has been a convincing showing, with a strong burden of proof, that they are unfit.

Moving away from the limited definition of families as being formed by marriage, biology, or adoption is a move in the direction of the further deconstruction of the family as an institution. Granting greater power to the government to define or even create “family” or “parental” relationships, meanwhile, is a move toward concentrating greater societal power in the hands of the state across the board.

Both trends should alarm not just social conservatives, but anyone who is concerned about excessive concentrations of power in the hands of the government.

A good and balanced law

by Cathi Herrod, President, and Josh Kredit, General Counsel and Vice President of Policy, Center for Arizona Policy

June 2, 2015

Cross-posted by permission of the Center for Arizona Policy, part of a national network of partner organizations that advance faith, family, and freedom at the state level.

Many of you likely watched the scene unfold in Indiana last month where supporters of religious freedom sought to pass a fairly simple law called the Religious Freedom Restoration Act (RFRA).

The scene was eerily similar to what played out here in Arizona with the CAP-supported SB 1062. Ignoring the facts, opponents of religious freedom falsely claimed that the bill would allow individuals to have a license to do pretty much anything, all in the name of their free exercise of religion. Or in other words, they wrongly tried to say religious freedom would become the equivalent of Monopoly’s “Get Out of Jail Free Card.”

Yet what was lost in the debate, both here in Arizona and in Indiana is the reality of how these laws actually operate in a court-setting and in real life. They don’t provide a license to do whatever illegal activity somebody wants to do. Rather, they provide the court with a well-established and longstanding legal balancing test for analyzing competing interests.

To provide some background, Arizona has had a state-version of RFRA since 1999, and a nearly identical federal law has been in place since 1993. More than 20 states also have state RFRAs.

In a nutshell, RFRA ensures the government cannot force someone to violate their religious convictions unless the government meets a strict legal test. For the strict legal test, the government must show it has a really good reason for the law and that the law is narrowly tailored to achieve that objective. If the government does that, then the RFRA defense fails and the government law or action stands.

Although Indiana’s original version of RFRA was heavily amended after big business bullied the governor and legislature, the remaining law is still set to take effect on July 1, 2015.

This brings us to a recent story out of Indiana and a perfect example of how RFRA works. Calling his newly formed church the First Church of Cannabis, founder Bill Levin plans to break the law and openly smoke marijuana. If he is cited or arrested, he says he will claim Indiana’s RFRA for protection.

Unfortunately for Mr. Levin, this same ploy was attempted in Arizona already, and Arizona’s RFRA operated just like it’s supposed to.

In 2005, Danny Hardesty was arrested for possession of marijuana, and in court he claimed that the use of marijuana was a sacrament of his church, the Church of Cognizance. This case reached the Arizona Supreme Court in 2009, and in a unanimous ruling the Court ruled against Hardesty.

Even assuming Hardesty had a truly sincere religious belief to smoke marijuana, the Court found that the government has a good reason to prohibit marijuana use (the fact that it poses a real threat to individual health and social welfare, in addition to the public safety concern posed by unlimited use, particularly by those driving motor vehicles), and that “no less restrictive alternative [ ] would serve the State’s compelling public safety interests and still excuse the conduct for which Hardesty was tried and convicted.”

So there you go, RFRA is not a “Get Out of Jail Free Card,” and it does not provide a license to do whatever illegal activity someone wants. Rather, it is a time-tested and just law that allows for courts to acknowledge when the government overreaches and burdens someone’s free exercise of religion, and to balance that against the reasons for the government action.

Please watch for the launch of the 3rd edition of The Policy Pages later this fall, which will include a brief devoted solely to explaining how laws like the Religious Freedom Restoration Act work.

 

Atlanta Mayor Steps up Disparaging Attacks on Chief Cochran

by Travis Weber, J.D., LL.M.

January 29, 2015

Last week, Chief Cochran lodged a complaint (known as a “charge of discrimination”) with the Equal Employment Opportunity Commission (“EEOC”) alleging that the City of Atlanta discriminated against him for his religious beliefs when it fired him after he authored a book on Christianity which mentioned homosexuality.

Information emerging publicly to this point (such as the city’s own admission that no one has even alleged that Chief Cochran ever treated anyone unfairly based on their sexual orientation) reveals the chief’s already-strong case for religious discrimination. Chief Cochran’s allegations in his complaint only bolster his case:

After the complaint was filed, the city quickly released the following statement in response.

Former Chief Cochran filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) and declared under penalty of perjury that the statements in the charge are true and correct. Unfortunately, the only truthful portions are his statements about his tenure as Chief and the identity of those in the room with him during two meetings. Everything else is patently false.

The City will respond directly to the EEOC at the appropriate time to inform the agency that instead of “unspecified policies,” Mr. Cochran was informed at the time of his suspension that he had failed to follow the City Code in seeking to engage in an outside income-producing venture. He was also informed that the issue was not the religious nature of his book, but the fact that he was espousing theories about certain groups of people that were in conflict with the City’s policy of inclusiveness. He was further informed that there was an issue with his espousing these beliefs while identifying himself as the Atlanta Fire Chief and while falsely claiming that his job description required him to run the Atlanta Fire Rescue Department on the basis of these beliefs. Finally, Mr. Cochran was informed that distributing the book to members of his command staff in the workplace was improper and sent a message to his staffers that they were expected to embrace his beliefs.

Although Mr. Cochran continues to claim that the City Ethics Officer authorized his publication of the book, that claim is as untruthful today as it was when first uttered. Mr. Cochran was told that the City Code required him to get the approval of the Board of Ethics before publishing his book, something he admits he never did.

Mr. Cochran states in his EEOC charge that he was told his faith influenced his leadership style and that this was the reason for his termination. What he was actually told was that his distribution of a book about his beliefs within his department had caused his employees to question his ability to continue to lead a diverse workforce.

The religious nature of his book is not the reason he is no longer employed by the City of Atlanta. The totality of his conduct—including the way he handled himself during his suspension after he agreed not to make public comments during the investigation—reflected poor judgment and failure to follow clearly defined work protocols.

Mr. Cochran continues to make false statements and accusations, even under penalty of perjury to the EEOC. This is just further proof that he has shown himself to be the wrong person for a leadership role in the City of Atlanta.

The city’s response reveals several things:

  • The fact that the city feels it needs to immediately and publicly respond to this complaint shows that the city is aware of the public importance of this debate. Typically an immediate public response to a legal filing is more general and cursory than the city’s here. Typically specific and targeted responses like the city’s first appear in the legal response. Yet the city is coming out swinging, which shows it realizes that this public debate over Chief Cochran matters. The city’s behavior here is unusual because now these statements can be used against the city if it contradicts them at all in future legal proceedings (this is typically why lawyers don’t want their clients to talk). Perhaps the city realizes it is losing this battle though, and it is scrambling to catch up a diffuse public support for Chief Cochran.
  • The viciousness of the city’s response (accusing Chief Cochran of committing perjury, and the sharpness of the city’s language in disputing him) reveals the nerve that the EEOC complaint touched.
  • The city is very sensitive about this being perceived as religious discrimination, but that’s exactly what it is. Specifically, the city says Chief Cochran’s religion is not at issue, but that his “theories about certain groups of people” are a problem—as if those two can be divided. Aside from the fact that this misrepresents Chief Cochran (he didn’t say anything about “groups of people” but spoke of a variety of sexual conduct that any one or more persons may engage in), the city is trying to parse something which can’t be parsed. The chief’s orthodox and faithful Christian views on sexuality are what inform his views of a variety of sexual conduct, including but not limited to homosexual conduct, which he believes (in concert with historic and orthodox Christian teaching) departs from God’s standard. The city is trying to ignore the fact that faithful Christianity directly informs views on sexuality. When the chief is punished for these views, he’s being punished for his religion. Thus this case has everything to do with religion.

If the city forces Chief Cochran to modify his views of sexuality as part of his discussion of his religion in his book, it is forcing him to deny and suppress the expression of his religion. Whatever the city wants to say, this case is all about religion.

  • Page 1 of 3
  • 1
  • 2
  • 3
Archives