From the majority opinion:
“We are called upon to decide whether the teacher-led recitation of the Pledge of Allegiance to the Flag of the United States of America, and to the Republic for which it stands, by students in public schools constitutes an establishment of religion prohibited by the United States Constitution. We hold it does not; the Pledge is Constitutional.”
The full 193 page decision is found here.
The 9th Circuit also today found the National Motto “In God We Trust” constitutional. That decision is here.
Ever-hopeful atheist Michael Newdow, who brought these cases, could appeal to a larger 9th Circuit panel of judges called an “en banc” panel, or directly to the Supreme Court. I don’t look for him to have any success in either venue.
The 9th Circuit’s biggest liberal, Stephen Reinhardt, dissented in the Pledge case and would have also in the Motto case if the 9th Circuit hadn’t previously ruled on that very issue. But he made it clear he thinks both decisions are wrong. We’ll talk more about him and pending 9th Circuit nominee Professor Goodwin Liu as birds of a feather in an upcoming post.
Who can forget the State of the Union address earlier this year in which President Obama dressed down the Supreme Court for its decision in the Citizens United case? My earlier post on the incident is here.
Now Chief Justice Roberts has finally addressed the issue in responding to questions from University of Alabama law students this week:
Roberts said anyone is free to criticize the court and that some have an obligation to do so because of their positions.
“So I have no problems with that,” he said. “On the other hand, there is the issue of the setting, the circumstances and the decorum. The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court – according the requirements of protocol – has to sit there expressionless, I think is very troubling.”
Next year’s SOTU will probably have a few extra seats available front and center, methinks.
The trial judge makes it clear here that media reports that he was considering allowing television cameras to record the closing arguments were incorrect.
And oddly enough, the case is apparently not even ready for closing arguments just yet, as a document discovery dispute has only within the last several days been resolved, requiring the LGBT opponent groups to produce certain internal documents of the kind that the Prop 8 proponents were required to produce. I don’t think I’ve ever heard of a case where discovery was still going on after the trial finished up, but nothing about this case has been “normal,” so we’ll just wait and see. I assume that if the documents produced turn up any evidence that the Prop 8 lawyers want to introduce into evidence before closing arguments proceed, they will be allowed to do so.
The new administration in Virginia has wasted no time taking on the biggest sacred cow of the politically correct public university crowd – the inclusion of “sexual orientation” and “gender identity” in so-called “non-discrimination” policies. In a letter to the Commonwealth’s public universities, as reported in the Washington Post, Attorney General Kenneth Cuccinelli has advised that the setting of state public policy is done at the General Assembly, not in college board rooms, Apparently the General Assembly has rejected bills that include sexual orientation and/or gender identity a total of 25 times since 1997. Cuccinelli’s advice:
I am aware that several Virginia colleges and universities have included “sexual orientation” in their respective policies. For the reasons stated, any college or university that has done so has acted without proper authority…Accordingly, I would advise the Boards of each college to take appropriate actions to bring their policies in conformance with the law and the public policy of Virginia.
The Virginia chapter of the ACLU is predictably indignant over this development. Exec. Director Kent Willis:
“Regardless of state law or policy, not only should universities prohibit discrimination on the basis of sexual orientation, but they are required to do so under the U.S. Constitution.”
Required, eh? That’s quite a stretch.
And if you don’t remember what the problem is with those non-discrimination policies, let me remind you.
Bradley Smith, the former chairman of the Federal Election Commission, writes a thoughtful essay on the value of anonymous political speech. In light of the Ref 71 petition signers case coming up for oral argument at the Supreme Court next month, Smith’s discussion couldn’t be any more timely concerning the dangers of “disclosure” laws. His key paragraph:
For 35 years, mandatory disclosure of political contributions has been the most popular part of the campaign-finance “reform” agenda. Yet the idea that Americans should report their political activity to the government is, in many ways, the most un-American part of that agenda. Excessive disclosure invades privacy to little benefit and provides government—and others—the information they need to retaliate against people holding unpopular or inconvenient views. Moreover, compulsory disclosure sends the message that identity, not ideas, matter. Call the result “ad hominem democracy,” an atmosphere in which serious, civil debate about issues seems ever harder to find.
The usual defense for disclosure laws is that they are needed to prevent corruption of the candidates and, hence, the process. But Smith points out that federal laws mandate disclosure of all donations over $200. And 40 states have a threshold of $100 or less. Can anyone seriously argue that you can buy a candidate for those amounts? And most of those states and federal government require the disclosure of the contributors’ occupations and employers. To what end?
Some of the stories of intimidation and retribution that Smith recounts in the name of “disclosure” are pretty eye-opening. It’s worth a read.
Signed,
Publius
In 2007, seven Christians were arrested for praying at a gay pride event in a public park in Elmira, New York. The event was open to the public, and the seven found a grassy spot near the stage to kneel or lay down to pray and read their Bibles.
Apparently afraid that the LGBT crowd might react in a hostile manner, the Elmira police arrested all seven of the Christians and charged them with disorderly conduct. Three copped a plea; four stood trial and were convicted. Of those four, three had their convictions overturned on appeal, and the fourth, Julian Raven, is appealing to New York’s highest court with the help of the Alliance Defense Fund. Mr. Raven’s conviction was not overturned in the lower court proceeding because he alone of the seven had been warned by a police officer not to go into the park (a violation of Raven’s rights, by the way).
I don’t know how many news stories I’ve read where Christian or conservative speakers are shouted down (or worse) by Lefties of all persuasions who show up for that single purpose, and who are never arrested or removed from the premises for actual, you know, disorderly conduct. But let a Christian rile things up by just showing up to silently pray for the people at an event, and the very essence of democracy is threatened.
The growing hostility toward religion in this country by those in government who are sworn to protect our religious freedoms is appalling.
The 3-page order is here.
In a nutshell, Chief Justice Roberts thinks that the petitioners’ (those asking for a stay of the new DC same-sex marriage law) argument “has some force.”
But then he goes on to remark on the uniqueness of DC’s governance. Historically, the Supreme Court has deferred to the courts within DC on matters of local concern. Second, he highlights the unique relationship of DC to Congress, who had the opportunity to stop this new law from going into effect but did not do so.
Finally, he says that this case hasn’t really ended. Although the petitioners’ quest for a ballot referendum (vote to kill the new law) is now moot, a ballot initiative to restore the traditional definition of marriage will still wend its way through the DC courts on the legal issue of whether the DC Human Rights Code trumps the charter provisions on ballot issues, and the Supreme Court may have an opportunity to get involved at that stage.
We could end up with another California situation with same-sex marriage existing for a time before a return to one-man, one-woman marriage.
The new DC same-sex marriage law takes effect on Wednesday.
My earlier post on this issue is located here.
An appeal was filed by the Alliance Defense Fund yesterday with Chief Justice John Roberts over the District’s refusal to let the people vote on the issue of marriage.
Here’s what’s going on. The D.C. Council passed a law allowing same-sex marriage in the District. Bishop Harry Jackson, on behalf of himself and other District residents, asked for a referendum so that the voters of the District could decide on marriage. The request was denied in an administrative hearing. Jackson appealed to a trial court and asked as part of the lawsuit for an injunction blocking the law going into effect this Wednesday. The court denied it. Jackson appealed to the District’s appeals court on the injunction issue. Lost again. Now Jackson is asking the Supreme Court to look at the refusal to grant an injunction.
The District is unique in its governance. It has its own charter (the equivalent of a state constitution) and its own statutes, but Congress oversees the District and has the final say (if it wants to) over any laws the Council passes. Congress did not take any definitive action on the new law.
The standards for injunctions are pretty unique, and it’s hard for me to generalize about any of the legal developments in this case. But the basic issue looks like it comes down to this: Does a District statute (its non-discrimination code) trump the District’s own charter (which grants its citizens the right to hold voter initiatives and referenda)? The District, and the 2 courts who have ruled thus far, say “yes.”
There could be lots of other issues that complicate the basic question, and I have to hedge my bets here until I get to read some of the pleadings in the case, but if a non-discrimination statute can trump a charter provision, then charters (and constitutions) are essentially meaningless documents.
And that’s a scary thing.
That is, if you’d like to continue the 9th Circuit’s reputation as the most bizarro, most liberal, most reversed appeals court in the federal system.
Liu, a Berkeley law professor, was nominated by President Obama for a vacant seat on the 9th Circuit U.S. Court of Appeals headquartered in San Francisco. An under-qualified but outspoken liberal, he has managed in his short few years out of law school to burnish and publicize his liberal credentials.
He’s a former board member for an exclusive list of far Left organizations: the ACLU of California, the American Constitution Society of Northern California, and the National Women’s Law Center. He managed to get himself invited to Justice Alito’s confirmation hearings to mischaracterize and then demagogue to the Judiciary committee about Alito’s record.
Liu wrote an op-ed criticizing California’s Prop 8 marriage amendment and the seven million citizens who voted for it by labeling it as “the will of a narrow and ultimately temporary majority.”
And last but certainly not least, Liu firmly has stated his belief in the desirability of courts making law from the bench: “What we mean by [constitutional] fidelity is that the Constitution should be interpreted in ways that adapt its principles and its text to the challenges and conditions of our society in every succeeding generation.”
This guy’s confirmation hearings should be interesting.
h/t to Ed Whelan at Bench Memos
First it was: How will the Scott Brown victory in Massachusetts impact this summer’s choice of a replacement for the almost-certainly retiring Justice Stevens? Then there was speculation that there might be TWO vacancies, Stevens and Ginsburg.
Now we hear from another Supreme Court expert, Tom Goldstein at SCOTUSblog that the President’s domestic policy problems this year will augur for a moderate nominee with no baggage involving controversial positions, like – Elena Kagan.
Stop. What?
Does he mean the same Elena Kagan who e-mailed the entire Harvard Law School faculty and student body (she was the law school Dean) about her “deep distress” over the military’s “don’t ask, don’t tell” policy. She said she “abhorred” DADT and called it a “profound wrong – a moral injustice of the first order.” She signed on to a Supreme Court legal brief opposing the DADT-related Solomon Amendment (requiring universities that accept federal funding to allow military recruiters on campus), a position that the Supreme Court rejected 9-0. Let me say that again. She was dead wrong by a 9-0 vote.
And it’s not just the fact that she was 180 degrees wrong on the constitutional arguments about DADT, but the underlying cause for it that’s important. In case you’re not quite understanding this, let me say it plainly: Her support for the homosexual agenda is so strong that it clouds her ability to think impartially on the subject. As I discussed in a previous post referenced above, she and Professor Feldblum, another much-discussed potential nominee, are near-certain votes for all things gay.
With the Perry marriage case working its way toward the Supreme Court over the next few years, I’m thinking that if President Obama is looking for a moderate this summer, a sure vote to redefine marriage is a non-starter for most Americans.
(note: to prevent a few unnecessary reader e-mails, I’m aware that the Solomon amendment case came out differently at the Third Circuit. But when you lose Justice Ginsburg and the other three SCOTUS libs, you’re not even close.)
