DriveThru – Get What You Need

The Supreme Court will hear arguments this April in the case of Christian Legal Society v. Martinez. This is a case in which the UC Hastings Law School, a public, government-funded school, imposed a requirement on CLS that in order to be recognized as a full-fledged student organization, with all the rights and perks associated with that recognition, it only had to do one small thing – give up its constitutional right to associate with like-minded people. That is, CLS must accept anyone, including non-Christians, Satan worshippers, etc, as voting members, leaders etc. All in the name of “non-discrimination.”

Although private universities can make almost any speech and associational rules they want, public universities are subject to the First Amendment.

Casey Mattox, one of the attorneys involved in the case, sets out the facts and legal arguments over at RedState. His key point:

The purpose of laws prohibiting religious discrimination has generally been thought to be to protect religious people, not to prevent them from associating together for a common purpose. Thus, every state and federal law recognizes that the faith-based hiring, membership, and related policies of religious organizations is not the government’s business, in keeping with the true intent of the Establishment Clause. But pushed by animosity toward religious groups from administration, faculty, and some students, many universities have lost this common-sense understanding. As a result, they have attempted to treat a Christian student group’s desire for Christian leaders – who among other things abstain from sex before marriage (a highly countercultural view on today’s campus) – as comparable to racism.

CLS lost in federal district court, and then lost at the 9th Circuit on appeal.

However, the 7th Circuit has already ruled on this issue (in CLS’s favor) in a previous case involving the same issue in Illinois.  So the Supreme Court gets to resolve a “circuit split.” I’ll be surprised if the Court doesn’t reverse the 9th Circuit on this one. The high court’s cases on associational freedom are pretty strong, and more in keeping with the 7th Circuit’s views than the 9th.

We should see a decision in June.

The former U.S. senator’s op-ed in the Philadelphia Inquirer neatly summarizes the history of Prop 8 opponents’ actions and reactions in California, from passage of the amendment through the most recent trial events, with particular emphasis on the antics of the trial judge, Vaughn Walker. His takeaway is that the real intolerant bigots throughout this process have not been the ones most often accused of it.

According to a column on Sunday:

“The biggest open secret in the landmark trial over same-sex marriage being heard in San Francisco is that the federal judge who will decide the case, Chief U.S. District Judge Vaughn Walker, is himself gay.”

As any reader of this blog already knows, I’ve criticized Walker’s handling of the case from the beginning. His rulings on discovery disputes, unnecessary factual issues he wanted to see developed at trial, and his incomprehensible series of maneuvers attempting to get television cameras in his courtroom, have all revealed a bias in favor of the anti-Prop 8 plaintiffs. The source of that bias could be the judge’s sexual orientation. At this point that’s just speculation. The fact that the bias exists is what’s important. As Andy Pugno, a lawyer for the Prop 8 folks said in the article:

“In many ways, the sponsors of Prop 8 have been put at significant disadvantage throughout the case,” Pugno said. “Regardless of the reason for it.”

Ed Whelan at Bench Memos comments on the Chronicle article in a post entitled: “Judge Walker’s Skewed Judgment.”  Key excerpts:

From the outset, Walker’s entire course of conduct in the anti-Prop 8 case has reflected a manifest design to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial of Prop 8’s sponsors.

….

Walker’s entire course of conduct has only one sensible explanation: that Walker is hellbent to use the case to advance the cause of same-sex marriage. Given his manifest inability to be impartial, Walker should have recused himself from the beginning, and he remains obligated to do so now.

I agree with both Pugno and Whelan. Whatever the source of Walker’s bias, the results have been clear – any chance for an impartial trial based on the actual (as opposed to the Walker-contrived) constitutional issues surrounding marriage – has been lost.

And Chuck Schumer’s, Dick Durbin’s, Russ Feingold’s – shoot, even Al Franken’s. If they’re paying attention, that is. Any Senate Judiciary Committee Democrat  who has ever contributed to the glut of carbon dioxide in the atmosphere by continually pontificating against “extremist right-wingers” on the Supreme Court who are supposedly way, way “out-of-the-mainstream” are going to have trouble explaining this poll.

Seems that 58% of Americans would prefer the Supreme Court to keep the definition of marriage intact, but only 52% expect it to do so, when the Prop 8 case, Perry v. Schwarzenegger reaches there.

Now, I don’t know how Chairman Leahy and his board of mis-directors (a/k/a Judiciary Dems) define “mainstream” judicial philosophy, but it appears that the American public (I’d say 58% qualifies as “mainstream,” wouldn’t you?) views it as a few degrees to the right of where the Court is now. In other words, THEY WANT MORE CONSERVATIVE JUSTICES in the future, not fewer.

So, my dear friends on the Left, when Justice Stevens retires this summer (I’m not saying he is or isn’t, just repeatin’ rumors), please don’t crank up the old “we must stop the ultra right-wing takeover of the Court” meme in order to justify another liberal appointment to the Court. You can’t protect the President on this one.

This poll shows that Americans want marriage to remain marriage. They want justices smart enough to figure out that same-sex marriage is not in the Constitution. And, in a happy coincidence, we may have an opening for just such a justice this summer.

You can either listen to what America is saying, or memorize six words: Martha Coakley, John Corzine, Creigh Deeds.

And the good senators in the Democratic-controlled state senate of the Commonwealth of Virginia just passed it. That is, they passed a measure to make it illegal to require individuals to purchase health insurance. Talk about an in-your-face response to the proposed federal mandate I’ve talked about before. And Virginia is not alone – similar measures are pending in at least 29 other state legislatures. That seems like a sane response from states increasingly worried about the federal government  encroaching on their sovereignty.

Now, we can argue about whether such state measures are merely symbolic – i.e.,  is Virginia’s senate just whistling in the dark because a national takeover of healthcare insurance will preempt any contrary state measures?  Virginia says it’s trying to establish legal “standing” for itself to join a lawsuit with other states against the federal government over any healthcare bill that comes out of Congress.

I’m not so much immediately interested in whether such measures as Virginia’s are constitutionally effective when the dust clears from litigation, as I am in the non-partisan phenomenon of states rising up like Tea Partiers to draw a line in the sand to say “NO” to another enormous expansion of the federal government’s reach.

Rich Lowry at NRO has written an intriguing essay about all this entitled “How Big Government Became a Cultural Issue.” He thinks that at stake in the stunning Scott Brown election “wasn’t just a grab-bag of fiscal issues, but the meaning of the country – the ultimate cultural issue.”

If the“healthcare reform” bills passed by the Senate and House are now mortally wounded, I won’t mourn for them.

Besides, if we nationalize healthcare, where will Canadians go for their surgeries?

I waded into a discussion of the apparent trial strategy of the anti-Prop 8 legal team of Olson and Boies to attack religion in the Perry case in an earlier post.

The always-incisive Al Mohler takes on the issue in a much more extensive way in this column addressing this Time Magazine article. Mohler’s key graph:

Boies’ argument finds its roots in philosophies of public reason such as those proposed by Robert Audi and the late John Rawls. Rawls argued that a liberal society must require the exclusion of all “comprehensive doctrines,” by which he meant religious worldviews. Audi argues that public discussion — and certainly any legislative or judicial forum — must require all parties to come to the table with both a secular rationale and a secular motivation. In his words, all parties have an “obligation to abstain from advocacy or support of a law or public policy that restricts human conduct, unless in advocating or supporting it one is sufficiently motivated by . . . adequate secular reason.”

So what do you believe? Should a religious worldview be a disqualifier for participating in the enactment of our nation’s laws? I don’t think there’s a middle ground on this one. You’re either all in, or all out.

Senate minority leader Mitch McConnell took to the Senate floor yesterday to rebut President Obama’s State of the Union comments about the Citizens United decision (that supposedly opened the floodgates to foreign money pouring into our federal elections). You should read McConnell’s press release for particulars, but his point is that federal law, and the Federal Election Commission regulations concerning foreign corporations were left unchanged by the CU decision and are pretty unambiguous.

McConnell cites a provision of the election statute, Title 2 of U.S.C. Section 441e, which he paraphrases:

Foreign nationals, specifically defined to include foreign corporations, are prohibited from, quote, ‘directly or indirectly’ making ‘a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State or local election.’

The FEC regulation which was also not affected by the decision, says:

‘A foreign national shall not direct, dictate, control, or directly or indirectly participate in the decision making process of any person, such as a corporation, labor organization, political committee, or political organization with regard to such person’s Federal or non-Federal election-related activities, such as decisions concerning the making of contributions, donations, expenditures, or disbursements in connection with elections for any Federal, State, or local office or decisions concerning the administration of a political committee.’

McConnell also makes the point, that with regard to state elections, 26 states allow corporations and unions to speak, without any discernable adverse impacts being reported.

It seems kind of obvious to me that Apple, Inc. (or any big public corporation) would avoid (like the plague) taking sides in an election where, by doing so, they stand to alienate half of their customers.  But industry groups, consumer groups, advocacy organizations and the like represent groups of people (people who are voters, let’s not forget) on all points along the political spectrum who should be entitled to have their voice heard in the 60 days prior to an election. McCain-Feingold’s restrictions on such speech during the 60 day “window” prior to a federal election don’t make much sense, let alone survive the First Amendment’s plain language.

From the transcript of the State of the Union speech last night:

“Last week, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.  They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.”

As the members of the Supreme Court sat with their usual stony faces, the Democrats surrounding them stood to their feet in loud applause and cheering (or was it jeering?). Chuck Schumer was so excited I thought he was going to launch a spit-wad at the Chief Justice’s head. Justice Alito appeared to shake his head ever-so-slightly and mouth something like “not true” or “you’re wrong.”  Check out the video of the whole incident here.

The first problem with the President’s statement is that it is not true, as I tried to suggest earlier. However, the larger issue I have with the President’s statement and the Dems’ reaction was how unseemly it was, given the status of the judiciary as a co-equal branch of government and the decorum that has always been observed at these state events with regard to the Court. There are innumerable ways to express disagreement with a court decision and the desire to address it through legislation without the dressing-down Obama chose to give. With the reaction of the Democrats ringing in his ears, I don’t blame Alito for his overt reaction. All in all, I thought the entire moment (and others in the speech I don’t need to go into here) degraded the office of President.

Ed Whelan gives his take on last night’s Supreme Court moment here.

True to form, Sen. Russ Feingold (D- WI) finds fault with Alito, not Obama.

…except for closing arguments (to be set after Judge Walker has finished digesting the evidence), a decision (probably in a few months), an appeal to the 9th Circuit (a decision in a couple years), and a probable trip to the Supreme Court. It could take several years to complete the process. It behooves both sides in this clash of values over marriage neither to take too much solace from a win in the lower courts, nor despair over a defeat. The issues are destined for the Supreme Court, and no one can confidently predict what the final outcome will be, because the outcome there may depend largely what the makeup of the Supreme Court is by the time the case gets there. I personally am convinced that the constitutional case for traditional marriage is rock-solid, but I’m realistic enough to understand that Justice Ginsburg (and her three liberal friends on the Court) and I agree eye to eye on almost no social issues. As usual, Justice Kennedy is the expected wild card.

Prof. Dale Carpenter, a law professor and pundit who favors legalized same-sex marriage, expresses doubts over same-sex marriage’s chances given the current makeup of the Supreme Court even among its liberal members:

“Like many others, I was dubious from the beginning about this bet. I don’t see how you get to a 5-4 majority on the current Court to strike down Prop 8. The hope has been that Justice Kennedy would join the Court’s liberal wing in such a decision. I’m not completely convinced that even this liberal wing — Justices Stevens, Breyer, Ginsburg, and Sotomayor — will take on the marriage laws of 45 states. Whatever else one thinks of their constitutional philosophies, the Court’s liberals are not nearly as adventurous or as aggressive as their liberal forebears.”

Maggie Gallagher over at The Corner thinks Olson and Boies chose the wrong strategy to win Kennedy’s vote..

Re my earlier post, I have to point out a delicious irony to this court decision. Although the libs from the Oval Office to the New York Times are weeping and wailing about the Citizens United decision, one group that asked for the very result that the Court delivered was the American Civil Liberties Union. Yep, that’s the very same ACLU that loves to prevent speech when it happens to be religious and anywhere near a public square. But like other advocacy organizations, the ACLU wants the right to speak out on issues of public interest at election time on behalf of its membership. What’s that old saying about a broken clock being right twice a day?

Their friend-of-the-court brief is here if you don’t believe me.

And by the way, I keep reading from the aggrieved Left that Citizens United overturned a 1907 law prohibiting corporate funding to campaigns. I’m not sure where that argument comes from. Citizens United left intact the statutory prohibition about direct corporate contributions to campaigns first enacted in 1907 and re-enacted in 1971. I guess the 1907 date helps set up the false argument for so-called “conservative activism.” Nice try.

Since the ACLU, big labor unions, the Sierra Club, and all of George Soros’ lefty organizations all benefit from the Citizens United decision to the same extent as any corporation, it’s still puzzling, (and yet amusing) to hear the end-of-the-world-as-we-know-it rhetoric from the Left.