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.

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.)

When I heard that a Washington post poll found that 80% of Americans disagreed with the Citizens United ruling, my first reaction was: Okay, how did they word the poll question? Because there’s no way, to my way of thinking, that such a vast majority of Americans would approve of government censorship of speech simply because it was corporate speech.

You and I join groups that speak out on a variety of subjects because a collective voice is easier to make heard, and I’m guessing you wouldn’t want your group to be told to shut up at the very point in time when your issue is the most critical.

Because of consistent and terribly misleading polls from the mainstream media about Roe v. Wade and other social issues I’ve seen over the years, I have concluded that many of these poll questions on certain issues are either “push polls,” where the questions are designed to elicit a certain response, or the pollsters really don’t have a clue about what Supreme Court decisions actually say.

For example, the 80% “oppose” response in the WashPo poll was to this question:

Do you support or oppose the recent ruling by the Supreme Court that says corporations and unions can spend as much money as they want to help political candidates win elections?

If that’s really what the Citizens United decision said or meant, I might have joined the 80% also. But alas, the question is fatally misleading. I’ll let Newsbusters explain it in depth, if you’re interested. Short answer: corporations, which include grass-roots, issue-oriented corporations, and mom and pops, along with Exxon Mobil, can spend all they want on speech related to elections. But they still can’t donate to campaigns, which has been the law on the books since 1907.

If it was true, as WashPo impliedly suggested with its poll wording, that labor unions and gigantic corporations could send millions to the campaign coffers of their favorite candidate, I would join the 72% of respondents in the poll who wanted Congress to do something  to prevent such a horrible possibility.

But the only actual frightening possibility is that there will be a few more television and print ads I’ll have to ignore at election time.

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.

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.