Category archives: The Courts

Sotomayor: A Policy Maker or a Jurist?

by JP Duffy

May 26, 2009

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.”

-30-

No Softening on Gay Judges

by Peter Sprigg

May 13, 2009

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?”

In that piece, Josh Gerstein contrasted recent comments by Focus on the Family judicial analyst Bruce Hausknecht with a quote of mine from an article about homosexual judges at the state level that appeared in USA Today in 2006. That article quoted me this way:

We don’t accept that homosexuality is any kind of cultural identity that should be sought in a judge,” says Peter Sprigg of the Family Research Council, a conservative advocacy group in Washington, D.C., that opposes same-sex marriage. “We think it’s a behavior, not something that should be held up as a role model.”

That comment has been held up as somehow being in conflict with my comments last week to Jake Tapper of ABC News:

Peter Sprigg, a senior fellow at the conservative Family Research Council, says that “the real issue would not be the person’s private life but the issue would be would they be imposing their personal ideology upon the court. In this case would they be imposing a pro homosexual ideology, a pro-same sex marriage ideology.”

It’s also been contrasted with what I told a blogger, Greg Sargent, who is affiliated with the Washington Post:

We don’t think that the process of selecting a Supreme Court justice should include asking questions about a person’s personal sex life,” Peter Sprigg, senior fellow at the Family Research Council, told me moments ago.

But if a person does publicly identify as gay or lesbian, or particularly if a person has been involved with homosexual rights activism at any level, then there would have to be serious questions asked about whether he or she would impose a pro-gay ideology on the court.”

Sprigg added that homosexuality in and of itself would not be a “determinant” against the acceptability of the nominee.

I didn’t even remember the USA Today interview until I saw it quoted, so I went back and reviewed it. The problem with the ostensibly more “hard-line” quote is that those quoting it did not mention that it came immediately after this statement by the reporter:

The effort by gay rights groups to increase the number of openly gay state and local judges has drawn criticism.

Three years later, I remain fully convinced that homosexuality can never be viewed as a positive characteristic in a judge (or in anyone else), so I fully stand by my position that no one should ever be appointed as a judge because they identify as “gay.”

However, those who identified my comments this year as a change in tone from the 2006 interview apparently did not read that article all the way through-since it ended with this:

[G]ay-rights groups … aim to create a “farm team” of judges who could be in position for the federal bench if future presidents are willing to appoint such judges.

Sprigg says his group would fight such an effort. But he says gay judges are acceptable to his group - as long as their sexual orientation isn’t a factor in their work.

We don’t think we should make an issue of it, if they keep it private,” he says. “If we had reason to believe that they would pursue a pro-homosexual agenda, then we would vigorously oppose them.”

Some of the bloggers commenting on this story have failed to make the distinction between saying conservatives “would not automatically disqualify” a homosexual candidate and saying conservatives “could support” one. The statements about not disqualifying a candidate simply reflect the fact that we believe even Supreme Court nominees deserve some zone of privacy, and acknowledge that there is at least a hypothetical possibility that somewhere in the country there is a judge who has experienced same-sex attractions, but who also respects judicial restraint and the original intent of the Constitution.

In the real world, however, the chances of finding a highly-qualified judge who fits both of those descriptions are probably about equal to the chances of a camel passing through the eye of a needle. So don’t hold your breath waiting for social conservatives to “support” a “gay” judicial nominee.

How Do I Feel About the Constitution Today?

by Family Research Council

May 3, 2009

One thing can be said for President Obama is that he doesnt sneak up on his targets. And another thing that can be said for this liberal administration is that it is not in the least embarrassed about its inclinations. To buy into this left-of-center government is to have gotten what one bargained for. Yesterday Obama made it clear that he wants to see retiring Justice David Souter (he who ignored the erstwhile tradition of justices allowing a president of the party that appointed him to nominate his successor) replaced by October and by an individual who has empathy and is about how our laws affect the daily realities of peoples lives. These are indeed fine characteristics, but they are finest in legislators and not in judges, and in judges they are finer in trial judges than in appellate and Supreme Court judges whose empathy may or may not be a reliable yardstick of, well quaint concept justice or due process.

President Obama also suggested that some (unspecified) Americans need Supreme Court judges who will use their empathy to assure that they feel welcome in their own nation. Is Obama referring to judges who will enforce duly enacted civil rights laws? To homosexual couples desiring to marry and have the U.S. Constitution traduced to their cause? To Mormons and Christians who are being assaulted in their churches or on the street for their participation in our democracy? To legal immigrants? Illegal immigrants?

In the realm of feeling, any answer is possible. But in the realm of leftwing jurisprudence, only one answer to each of these questions is likely. The empathy that matters is in the eye of the office-holder.

Judge Lederman’s Top Ten List: Bad Arguments for Homosexual Parenting

by Peter Sprigg

January 12, 2009

After seven years of working on the issue of homosexuality at the Family Research Council, I think I have a pretty good sense of the arguments that pro-homosexual activists use in support of their agenda, such as affirmation of homosexual parents and same-sex “marriage.” Even when those arguments are made well, they are unconvincing-but when they are made poorly, it just leaves me shaking my head.

One example of this phenomenon-bad arguments made badly-got a lot of attention recently. That was the Newsweek cover story on “The Religious Case for Gay Marriage,” penned by the magazine’s religion editor Lisa Miller. It was so poorly researched and poorly reasoned that Miller should lose her job for it-not because she is in error, but because she is incompetent. Some political writer posting on a blog might get away with the kind of sloppiness Miller showed-but a “religion editor” writing a cover story should not be allowed to. Family Research Council President Tony Perkins and I wrote in detail about the Newsweek story on December 9.

Another example of a bad pro-homosexual argument badly made drew less attention, in part because of timing. On November 25-just two days before Thanksgiving-a Miami-Dade County judge in Florida, Cindy S. Lederman, issued a ruling declaring that state’s law barring homosexuals from adopting children to be a violation of the Florida constitution. The ruling came despite the fact that in 2004, the federal courts rejected a similar challenge to the same law. Lederman’s 53-page decision can be found here.

I am no longer surprised when a judge merely regurgitates the arguments typically offered by pro-homosexual activists, instead of engaging in an open-minded and thoughtful analysis. Such regurgitation is exactly what was done by the judges who voted to legalize same-sex “marriage” in Massachusetts, California, and Connecticut. But when a judge does not just explain away the evidence against the pro-homosexual position, but essentially denies that it even exists, then you know that the fix was in from the start.

Let me explain how the debate over homosexual parenting usually plays out, and how Judge Lederman went even beyond the normal pro-homosexual talking points.

One of the key arguments in favor of allowing homosexual parenting usually goes something like this: “There’s no proof that children raised by homosexuals do any worse than children raised by heterosexuals.” That they are able to make this claim with any degree of plausibility is due to only one fact-virtually all of the studies that have been conducted specifically of homosexual parents have suffered from such grave methodological flaws that they cannot be said to provide definitive “proof” of much of anything, one way or the other.

It is extremely difficult to get a truly random sample of the homosexual population, simply because that population is so small. The best surveys show that only about two percent of the population identifies as homosexual or bisexual (and only about one percent of couples sharing households). Therefore, scholars doing research on homosexuality often have to rely on “convenience samples”-for example, by advertising for study participants in publications catering to homosexuals. In the case of homosexual parents, it seems likely that those whose children are suffering serious problems would be less likely to volunteer, while those who do volunteer may be motivated by a desire to prove a point, and put only their best foot forward. Such a sample is likely to yield a more positive picture of homosexual parents than a truly random sample would.

Going hand-in-hand with the “no proof” claim is the “no differences” claim-the assertion that the research shows “no differences” between children raised by homosexuals and those raised by heterosexuals. Yet this claim has been decisively refuted by a source whose credibility on the issue is enhanced by her clear lack of bias against homosexuals-namely, the militantly pro-homosexual researcher Judith Stacey. Her 2001 article in American Sociological Review (with co-author Timothy J. Biblarz) conclusively refutes the “no differences” claim, noting that the research actually shows that children of lesbians are more likely to engage in homosexual behavior, daughters of lesbians are “more sexually adventurous and less chaste,” and lesbian “co-parent relationships” are more likely to break up than heterosexual marriages. Stacey does not consider these differences to be problematic, but others will certainly disagree. In essence, Stacey’s article confirms that advocates and many researchers themselves have been simply lying when they make the “no differences” claim.

Lederman’s decision mentions the Stacey and Biblarz article in a footnote, and notes her pro-homosexual position, but it fails to even mention the significance of the article in refuting the “no differences” claim. Instead Lederman merely repeats the discredited claim, declaring, “These reports and studies find that there are no differences in the parenting of homosexuals or the adjustment of their children” (p. 37 of the decision). Yet she goes even further. After repeating the (discredited) claim that there are “no differences,” she goes well beyond the narrowly defensible claim that the research provides “no proof” of negative outcomes, and instead makes a sweeping assertion that “based on the robust nature of the evidence in the field, this Court is satisfied that the issue is so far beyond dispute that it would be irrational to hold otherwise.”

To call the evidence “robust” on this matter is an exaggeration that should be embarrassing even to the pro-homosexual activists themselves. A detailed literature review of 49 studies on homosexual parenting reported:

Some major problems uncovered in the studies include the following:

Unclear hypotheses and research designs

Missing or inadequate comparison groups

Self-constructed, unreliable and invalid measurements

Non-random samples, including participants who recruit other participants

Samples too small to yield meaningful results

Missing or inadequate statistical analysis

Lerner and Nagai found at least one fatal research flaw in all forty-nine studies. As a result, they conclude that no generalizations can reliably be made based on any of these studies. For these reasons the studies are no basis for good science or good public policy.

Lederman’s own account of the testimony of one witness for the petitioner, however, contradicts the “no differences” claim in at least one crucial area-namely, the sexuality of young people raised by homosexual parents. Lederman notes on p. 17 that “one study revealed that female children raised by lesbians were more sexually active” and also said that “children raised by lesbian mothers expressed openness to considering same sex attraction.” But the witness, English psychologist  Michael Lamb, reportedly dismissed these findings as representing merely “a lesson in promoting tolerance” and showing that “children raised by lesbians are less strictly tied to sexual roles and rigid applications of sex roles.”

The principal case against homosexual parenting, however, is not based so much on the limited, methodologically deficient studies of homosexual parents as such. Instead, it is based on inferences to be drawn from two other bodies of research that are, indeed, “robust” in their findings. One is the evidence that homosexuality itself is associated with high levels of a number of pathologies-sexual promiscuity, sexually transmitted diseases, mental illness, substance abuse, domestic violence, and child sexual abuse. The second is the overwhelming body of evidence showing that in general, children do best when raised by their own biological mother and father who are committed to each other in a lifelong marriage. When these two bodies of evidence are juxtaposed upon each other, they provide more than sufficient reason for alarm about deliberately placing children with homosexual parents (for example, through foster care or adoption). Let’s look at these two factors individually.

Pro-homosexual activists usually do not deny that homosexuals have higher physical and  mental health risks-the evidence is simply too overwhelming. In fact, one of the most succinct summaries of those risks can be found on the website of the pro-homosexual Gay and Lesbian Medical Association. Here are some of the GLMA’s warnings about homosexual men:

That men who have sex with men are at an increased risk of HIV infection is well known . . .”

Gay men use substances at a higher rate than the general population, and not just in larger communities such as New York, San Francisco, and Los Angeles.”

Depression and anxiety appear to affect gay men at a higher rate than in the general population.”

Men who have sex with men are at an increased risk of sexually transmitted infection with the viruses that cause the serious condition of the liver known as hepatitis.”

Sexually transmitted diseases (STDs) occur in sexually active gay men at a high rate.”

Although more recent studies have improved our understanding of alcohol use in the gay community, it is still thought that gay men have higher rates of alcohol dependence and abuse than straight men.”

Recent studies seem to support the notion that gay men use tobacco at much higher rates than straight men . . .”

Problems with body image are more common among gay men than their straight counterparts, and gay men are much more likely to experience an eating disorder such as bulimia or anorexia nervosa.”

[H]uman papilloma virus [HPV] … infections may play a role in the increased rates of anal cancers in gay men.”

Although the health risks for lesbians are not as dramatic as those for homosexual men, they are still significant:

Lesbians have the richest concentration of risk factors for breast cancer than any subset of women in the world.”

Lesbians have higher risks for many of the gynecologic cancers.”

Research confirms that lesbians have higher body mass than heterosexual women.”

Research also indicates that lesbians may use tobacco and smoking products more often than heterosexual women use them.”

Alcohol use and abuse may be higher among lesbians.”

Research indicates that lesbians may use illicit drugs more often than heterosexual women.”

Since the evidence is so overwhelming, the usual explanation offered by pro-homosexual activists for the mental health problems (and sexual risk-taking, which leads to physical health problems) of homosexuals is to blame society’s negative attitudes toward homosexual conduct. For example, the GLMA list offers this explanation for higher rates of depression and anxiety among lesbians: “Lesbians have been shown to experience chronic stress from homophobic discrimination.”

However, instead of offering this stock answer (“Homophobia made me do it!”) to the mental health problems of homosexuals, Judge Lederman baldly denied that such problems exist at all, declaring that “expert witnesses” had shown that “homosexually behaving individuals are no more susceptible to mental health or psychological disorders that their heterosexual counterparts” (p. 10).

Yet a detailed footnote (footnote #8, p. 14) giving actual statistics shows a completely different story. For example it states that rates of “major depression” are more than twice as high among homosexual men than among heterosexual men (17% to 8%). Rates of smoking are 47% higher among bisexual men than among heterosexual men (28% to 19%; rates for homosexual men are not given), and 77% higher among lesbians than among heterosexual women (23% to 13%). Rates of alcohol dependency are 42% higher among homosexual and bisexual men than among heterosexual men (9.2% to 6.5%), and more than three times higher among lesbians than among heterosexual women (9% to 2.7%). Rates of drug dependency are two and a half times higher among homosexual and bisexual men than among heterosexual men (7.5% to 3%), and more than three times higher among lesbians than among heterosexual women (5% to 1.5%). “Suicide attempts” are twice as high among homosexual men as among heterosexual men (5.6% to 2.8%), and they are more than twice as high among lesbian or bisexual women as among heterosexual woman (11% to 4.5%). Meanwhile, the “lifetime history of suicide attempts” (presumably measured in a different study) is more than three times as high among homosexuals as among heterosexuals (14% to 4.5%).

It may be that we should not place too much weight upon the specific statistics cited in Footnote 8, because they include several illogical anomalies, perhaps resulting from the conflation of data from different studies. For example, the data on “major depression” report that the rate for “men” (5%) is significantly lower than the rate for both homosexual and heterosexual men (17% and 8%, respectively)! On the other hand, the data for “smoking” indicate that the rate for “men” (36.4%) is higher than the rate for both bisexual and heterosexual men (28% and 19%)-it hardly seems likely that the population of homosexual men (omitted from the list) would be large enough to raise the total figure so dramatically. On the female side in the smoking category, the rate listed for “women” (23%) is the same as that listed for lesbians, but significantly higher than that listed for heterosexual women (13%), even though the latter are the overwhelming majority of all women.

The mere fact that such manifest absurdities were included in the decision demonstrates the carelessness and incompetence of Judge Lederman. But even when taken with a substantial grain of salt, the data certainly provide no support whatsoever for her claim that “homosexually behaving individuals are no more susceptible to mental health or psychological disorders that their heterosexual counterparts.”

In fact, the internal contradictions of Judge Lederman’s opinion are illustrated by the fact that she later abandons the “no more susceptible” claim, citing another expert witness on page 14 as concluding that “the average rates of psychiatric conditions, substance abuse and smoking are [emphasis added] slightly higher for homosexuals than heterosexuals” (though rates that range from 42% to 233% higher, as indicated in Footnote 8 on the same page, would seem to be more than “slight” differences). Instead of denying the differerences altogether (as on p. 10), Lederman shifts to another argument, suggesting that there are other demographic groups that also have higher rates of “psychiatric conditions, substance abuse and smoking” than the general population, including “American-Indians,” “the unemployed,” and “non-high school graduates.”

This comparison, however, is flawed because homosexual conduct is not an innate characteristic like race, an involuntary characteristic like unemployment, nor a socioeconomic characteristic like educational attainment. It is a behavioral characteristic, defined by the voluntary choice to engage in specific behaviors, namely sexual acts with people of the same sex.

By way of comparison: if the research shows that women are more likely to get breast cancer than men, that cannot logically be taken as proof that women are inherently inferior to men, because one’s biological sex is an innate and involuntary condition. On the other hand, if research shows that cigarette smokers are more likely to get breast cancer than non-smokers, such a finding can logically be taken as evidence that not smoking is better than smoking, because smoking is a voluntary behavior with demonstrable negative consequences.

Much of the homosexual rights movement as a whole rests on deliberate obfuscation of this point. That is, it rests on the effort to portray homosexuality (falsely) as an innate characteristic like race or sex, instead of as what it is-a voluntary behavior, like smoking, that has clear negative consequences.

When it comes to the findings that children do best when raised by their own, biological mother and father who are committed to one another in a lifelong marriage, most pro-homosexual activists do not try to deny the overwhelming evidence. Instead, they generally will point out that most of the studies on which this conclusion is based involve comparisons with single-parent families or divorced families, rather than with homosexual couples as such.

Judge Lederman, however, was not content to dismiss this evidence as not being directly relevant, the way most pro-homosexual activists do. Instead, she dismissed it altogether. Citing Dr. Lamb for authority, she declares that “researchers once believed that traditional families provided the best environment for children. As the research developed, however, the notion was proven to be flawed …” (p. 15). She concludes her summary of Lamb’s testimony with two other statements, also false, stating that “the assumption that children need a mother and a father in order to be well adjusted is outdated and not supported by the research,” and making the absurd claim that “there is a well established and generally accepted consensus in the field that children do not need a parent of each gender to adjust healthily” (p. 18).

The truth is exactly the opposite. For instance, the non-partisan think tank Child Trends surveyed the literature and found, “An extensive body of research tells us that children do best when they grow up with both biological parents in a low-conflict marriage.” To the argument (often advanced by homosexual activists) that it is merely having the support of two parents that matters, Child Trends added, “Children growing up with stepparents also have lower levels of well-being than children growing up with biological parents. Thus, it is not simply the presence of two parents, as some have assumed, but the presence of two biological parents that seems to support children’s development.”

In similar fashion, Lederman denies that homosexual partnerships are more unstable than heterosexual marriage-then includes a footnote showing exactly the opposite. Footnote #4 on p. 11 cites one study (apparently from Europe) showing that “same sex couples in civil unions” had break-up rates 41 % higher than married heterosexuals (3.8% to 2.7%), while “same sex couples not in civil union” [sic] had rates more than three times higher (9.3%). It cites another study from Sweden in which the break-up rates for “gay male registered partnerships” were 75% higher than for married heterosexuals (14% to 8%), and the rates for “lesbian registered partnerships” were two and a half times higher (20%). She also cites an old (1970) study that showed that just in the first two years of a relationship, the break-up rates for “gay men” were four times higher than for married heterosexuals (16% to 4%), and the rates for lesbians were five and a half times higher (22%).

I won’t even go into the blatant religious bigotry expressed by Judge Lederman, who dismissed the testimony of two experts for the state on the basis of their having written for religious publications. James A. Smith, Sr. of the Florida Baptist Witness has already written on that aspect of Lederman’s decision here.

Lederman’s decision was not only poorly reasoned, but poorly written, being riddled with non sequitirs and punctuation errors. Take this passage on whether homosexuality is a mental disorder, for example: “Today, Dr. Berlin reports that leading professionals agree that homosexuality defines one’s same sex attraction only. [?] According to the witness, homosexuality was removed from the DSM because the evidence of [for?] it’s [sic] classification as a disorder did not justify the conclusion.”

While Judge Lederman’s decision was a comedy of errors, it is no laughing matter. One can only hope that this atrocious decision will be overturned on appeal.

The Hunt for Red Beluga

by Michael Fragoso

November 13, 2008

In a case that resembled a mix between a Tom Clancy novel and Star Trek IV: The Voyage Home, the US Supreme Court ruled that the Navy can use its active sonar when conducting drills and fleet operations off the California coast.  Environmental groups had argued that active sonar pinging could be harmful to marine mammals, and thus ought not to be permitted.  The Navy countered that such fleet operations are necessary to keep our forces up to snuff in their sub-hunting abilities in the event of a naval war. 

The short of it is that an environmental group, the Natural Resources Defense Council, sued the Navy arguing that they failed to issue an environmental impact report for their exercises in violation of the National Environmental Policy Act (NEPA).  A district court judge saw things the same way, and the Navy agreed to issue the report, but chafed at the sonar-use restrictions placed upon them by the court.  President Bush stepped in, directing that the Navy be exempt in this case from the NEPA because these sub-hunting exercises are necessary for national security in time of war.  Unsurprisingly, the liberal 9th Circuit Court of Appeals disagreed and upheld the lower ruling, resulting in yesterday’s Supreme Court decision, which had a comfortable 6-3 margin.

Some readers might recognize this case from the Court Jesters segment at our Values Voters Summit back in September.  (Phyllis Schlafly wrote a poem about it.)  It’s very refreshing to see that-at least for now-we have a Supreme Court willing to correct the silliness of activist judges.

Ezra Pounds the Human Rights Tribunals

by Michael Fragoso

August 7, 2008

Via NRO I see that Ezra Levant, a Canadian magazine publisher, has been acquitted by the kangaroo Human Rights Tribunal that had been investigating him.  His account of the acquittal-and further denunciations of his inquisitors is here.  I once heard Levant speak here in Washington and he was just as full of justified indignation then as he seems to be now.  In Canada these tribunals have been used by radical Muslims to silence critics of Islam and by homosexual activists to silence religious speech they find offensive.

On the Islamic side, the experiences of people like Levant are dangerously close to the experiences of those who live in Muslim countries and have to face “blasphemy laws.”  These blasphemy laws are a growing problem in many countries, since they are often used to repress religious minorities and to silence political opponents.  They also are part-and-parcel of a growing problem at the international level, namely the ten-year effort to establish “defamation of religion” as a prohibited action by customary international law.  In other words it would be a blasphemy law as an international norm.  (The Becket Fund has been watching this issue carefully, especially as it would affect established religious liberty.)

On the Christian side, the Canadian tribunals might be a forerunner of what we might see in the United States with expanded hate-crimes laws and same-sex marriage.  As Levant mentions in his piece, one Canadian man of the cloth has already been forbidden to discuss certain tenets of his faith.  In Sweden, Pastor Ake Green was also brought up on charges for denouncing homosexuality (see our brief in the case here).  At least in Green’s case, however, he was tried in standard courts, and acquitted.  As Levant points out, these tribunals are far murkier and less accountable for their actions.  (“The process is the punishment,” I heard him say.)  Their slow importation into the United States poses a serious threat to religious liberty, as we are already learning in places like New Mexico.

So congratulations to Ezra Levant, but we should pay close attention to his story, lest it just be a prologue for similar petty tyranny here in the United States.

The 7th Circuit sends the Italian genius packing …for now

by Pat Fagan

August 7, 2008

The 7th Circuit Court of Appeals ruled Tuesday that The Freedom From Religion Foundation had no legal standing to sue the U.S. Department of Veterans Affairs for incorporating chaplain work into its veteran health care. What does this have to do with Gramshi, the Italian genius of soft communism?

To have the federal government expand its reach into virtually every corner of life (family, school, health, the economy) and simultaneously to push for a radical “wall of separation of church and state” is to ban religion from life. It is the perfect scenario for a slow but Sherman-like “march through the institutions” as Gramsci envisioned.

As Mapping America shows, the practice of religion is integral to superior outcomes in most dimensions of life, and medicine is no exception as reviews of the literature make clear.

The plaintiff in a case against Veterans Affairs for their support of chaplains’ work with ill patients, The Freedom From Religion Foundation, clearly falls among the ranks of those dedicated to a Gramsciite deconstruction of American society, not a building up of her strengths nor even of the care of her sick soldiers.

Sitting on the bench (in more ways than one)

by Bill Saunders

July 25, 2008

A week ago, July 17th marked the 365th day that Chief Judge Robert Conrad has been nominated for the 4th Circuit Court of Appeals and has not had a hearing in the Senate. That is one year, without the basic courtesy of Senate Democrats telling him to his face why they do not want him on court. It is also one year in which the 4th Circuit has languished, short-handed, with over a quarter of its seats vacant. A recent hearing in the Senate, convened by Sen. Alexander of Tennessee, brought a distinguished panel of witnesses to show why this is unfair to Judge Conrad and the American people.

Judge Conrad is eminently qualified to sit on the 4th Circuit. In fact, as recently as 2006 the Senate deemed him qualified to head the Federal Western District Court of the North Carolina, and a year before that appointed him to that court without opposition. As the representative of the North Carolina Bar Association told the Senate panel, Conrad is a superb lawyer who deserves to be put on the court, not left in judicial limbo. (He also noted that North Carolina, the most populous state in the 4th Circuit, has only one judge on the court—a misrepresentation that Judge Conrad’s appointment would help to remedy.)

Perhaps the worst part about what is going on is the dishonesty of it all. Sen. Patrick Leahy, Chairman of the Judiciary Committee, has already unfairly smeared Judge Conrad by wantonly mischaracterizing his religious beliefs. Now he has taken refuge behind the so-called “Thurmond Rule” in holding up the nomination of Conrad and others like him. Leahy alleges that Republicans, led by deceased Sen. Strom Thurmond in 1980, purposefully obstructed the nominations of President Carter’s federal judges since it was an election year, so, in the words of Leahy, they might “remain vacant in order to be filled with the nominations of the next president.” The Congressional Research Service debunked that claim. In fact, in September of 1980 the Senate confirmed 12 judicial nominations. The Senate even confirmed Stephen Breyer (now an Associate Justice of the Supreme Court) to the 1st Circuit after Reagan’s election. All in all, of the 14 nominations pending in 1980 12 received hearings, 10 were reported, and 10 were confirmed—71.4%. Compare that to the 35% treatment Bush has received.

Sen. Leahy should be honest about the Thurmond Rule, and follow Sen. Thurmond’s example by holding hearings on 8 more judges—starting with Robert Conrad.

A Limit to Judicial Activism

by Bill Saunders

July 17, 2008

They finally got one right!  After two of the worst, most politically motivated decisions in history, the California Supreme Court finally issued a rational decision. The Court threw out a challenge to this fall’s ballot initiative seeking to enshrine traditional marriage in the California constitution.  The challenge was the latest attempt by social leftists to prevent the people of California from deciding an absolutely fundamental issue - the definition of marriage.  Of course, the traditional definition of one man and one woman was thrown into dispute because the same California Supreme Court held that “limiting” marriage to one man and one woman was discriminatory against homosexuals who wished to marry one another.  They then followed that up by what might be the most undemocratic action of all: refusing to “stay” the legal effect of their decision until the people of California could decide the issue in the fall.

Apparently, the chief justice and others are convening meetings to, as they call, it “preserve impartial courts in California.”  It is hard not to laugh.  Exactly what is “impartial” about outlawing marriage as an “irrational” institution?  Or about refusing to stay that decision until the people can vote?

A new day is dawning in abortion litigation

by Bill Saunders

July 4, 2008

Remember Gonzales v. Carhart? That’s the Supreme Court decision from last year that upheld the Congressional ban on partial birth abortion. Justice Kennedy wrote the opinion, and lawyers tied themselves up in knots trying to interpret it. Most agree it was a narrow victory for the pro-life cause, but it was a victory. That can be seen in last Friday’s decision by the 8th Circuit to allow a South Dakota abortion law to go into effect, a case in which FRC filed a friend of the court brief.

Prior to Gonzales v. Carhart, such laws were routinely struck down before they ever came into binding, legal force. Kennedy specifically noted, however, that this approach (another of the distortions abortion causes to the law) would no longer be followed. If someone wanted to challenge a law as it was applied to them, they could, and the court would decide whether specific provisions of that law, rather than the entire law, violated the Constitution. The 8th Circuit applied that logic to a challenge to South Dakota’s law, and allowed the law to go into effect.

The law merely provides that women seeking an abortion should be given complete information about the risks involved, etc, but Planned Parenthood and the abortion industry wanted to stop it at any cost, as usual, regardless of the fact women deserve to receive such information. However, the 8th Circuit rejected their old “business as ususal” approach to litigation concerning abortion and replaced it with some common sense.

A new day is dawning in abortion litigation.

Archives