Month Archives: August 2010

Levin and Whelan Discuss the Decision that Threatens Marriage Laws across the United States

by Chris Gacek

August 6, 2010

Talk-show host Mark Levin spent a considerable amount of time on Wednesday discussing the atrocious federal court decision striking down the definition of marriage that Californians placed in their constitution in 2008 via Proposition 8. Levin also interviews Ed Whelan of the Ethics and Public Policy Center and NROs Bench Memos about the case. Go here for a listing of recent Levin broadcasts and click the link for the 08/04 The Mark Levin Show.

Does Lawrence v. Texas Imply a Right to Same-Sex Marriage?

by Peter Sprigg

August 6, 2010

This week San Francisco federal Judge Vaughn Walker, in the case of Perry v. Schwarzenegger, ruled that the U.S. Constitution protects a right of same-sex couples to marry. This has sparked speculation about how the case might fare on appeal if and when it reaches the Supreme Court. Some commentators argue that the courts decision striking down sodomy laws, in the 2003 case of Lawrence v. Texas, implies that the court would also back same-sex marriage. I wrote on that subject in 2004, and below are my observations, with quotes from the opinions in Lawrence.

The nuclear bomb of the homosexual marriage movement would be a decision by the United States Supreme Court declaring that it is unconstitutional to deny homosexual couples the benefits, or perhaps even the actual status, of civil marriage.

The likelihood of such a ruling appeared to increase exponentially when the Supreme Court struck down state laws against homosexual sodomy in the case of Lawrence v. Texas, which was decided on June 26, 2003.

Dissenting justice Antonin Scalia warned as much in his scathing dissent:

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestialiy, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision: the Court makes no effort to cabin the scope of its decision to exclude them from its holding.[i]

However, a close examination of the majority opinion seems to cast doubt on Scalias sweeping claim that there was no such effort to cabin the rulings scope. For example, Justice Anthony Kennedy’s decision says this:

The laws involved in Bowers and here … seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.[ii]

In other words, he concedes that these relationships may not be “entitled to formal recognition,” i.e., marriage. He goes on immediately after to say:

This, as a general rule, should counsel against attempts by the state, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.[iii]

Presumably he’s speaking of marriage here, and accepting that same-sex marriage, like adultery, might constitute abuse of an institution the law protects. Then in his conclusion, Kennedy again says:

The present case … does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.[iv]

Likewise, in her concurring opinion (basing her decision on equal protection considerations rather than privacy and due process), Justice O’Connor wrote:

That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations—the asserted state interest in this case—other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.[v]

In referring to national security or preserving the traditional institution of marriage as a legitimate state interest, she seems to be clearly saying that this case does not involve gays in the military or homosexual marriage.

Scalia, though, remained skeptical:

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that preserving the traditional institution of marriage is a legitimate state interest. But preserving the traditional institution of marriage is just a kinder way of describing the State’s moral disapproval of same-sex couples.

Although I greatly respect Justice Scalia, I dont fully agree with this last sentence. As I have noted earlier, opposition to homosexual marriage does not have to be grounded only in disapproval of homosexual couples, but can rest in the recognition that their relationships are by nature something different from marriage.

While the majority opinion did have passages that appeared to distinguish the issues in Lawrence from those involved in marriage, yet other passages did indeed hint at a link. For example, Kennedy said:

When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.[vi]

In another passage, Kennedy cited the 1992 decision in Planned Parenthood of Southeastern Pa. v. Casey (which upheld a right to abortion). Kennedy declared:

The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.

He then went on to state, Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.[vii]

Legal scholars on the other side of the debate have drawn very similar conclusions to Scalias. Liberal Harvard Law professor Laurence Tribe says, Same-sex marriage, as Justice Scalia predicted in his outraged dissent, is bound to follow; it is only a question of time… . [T]he underlying theory and most important passages of Lawrence suggest ready (though not immediate) applicability of the holding to same-sex marriage … .[viii]

In summary, a close reading of the Lawrence decision suggests that advocates of same-sex marriage could claim that it serves as precedent for same-sex marriagebut it would not inevitably do so.


[i] Lawrence et al. v. Texas, 123 S. Ct. 2472 (2003): 6 (page numbers cited are from the respective opinions as published in the initial Bench Opinion).

[ii] Ibid.

[iii] Ibid.

[iv] Ibid., 17-18.

[v] Ibid., 7.

[vi] Ibid., 6.

[vii] Ibid. (Kennedy), 13.

[viii] Laurence H. Tribe, Lawrence v. Texas: The Fundamental Right That Dare Not Speak Its Name, 117 Harvard Law Review (April, 2004): 1945, 1949

Evidence of Atrocious Medical Care by Abortionists

by Chris Gacek

August 5, 2010

Over an extended period of time working with first-rate pro-life doctors I have often heard stories of the really poor medical care that women having abortions receive from abortion doctors and clinics.

A repeated story involves the abortionists who encounter life-threatening complications during an abortion and then dump their patients on a local emergency room. Typically, the ER wants nothing to do with such patients. They would like to deal with patients who are brought to them by a doctor with admitting privileges at the hospital. Often, abortionists do not have admitting privileges at a hospital and that leads to the loss of valuable time when the patient arrives for admission. Also, the ER doctors dont know the patients case history or what exactly happened. Finally, a patient in this condition is a malpractice time bomb thrown at the ER physicians.

Consequently, it was interesting that a very big deal New York Times article by Emily Bazelon unwittingly pulled back the curtain on this kind of terrible medical practice. Her very long piece in the newspapers Sunday magazine (dated July 18, 2010) is worth reading just to get a glimpse of the way the abortion industry is attempting to make itself mainstream. One reason it can do so is that very deep pockets are helping it.

According to Bazelon, millions and millions of dollars of Warren Buffets foundation money has supported abortion causes. It appears to be more like hundreds of millions of dollars. In any case, dear Warrens money paid to help finance the research and development of the pills that induce abortion that would be RU-486. And, this as well: The foundation also helped finance a lawsuit to overturn the ban on so-called partial-birth abortion in Nebraska… Well, I digress.

Bazelon spends most of the article describing the career paths of younger abortionists the foremost being, a Dr. Emily Godfrey. Here is where the story gets interesting relating to the treatment of emergencies by abortionists:

And then one snowy day in 2007, Godfrey had a patient with a serious complication who needed to go to the hospital. She called the OB-GYN who was supposed to be on call. He was out of town. She called Sunni, who told her to get the patient to the local hospital. But Godfrey had no admitting privileges there, and the doctor on call seemed unwilling to admit the patient. She said, How dare you come here, Godfrey remembered. She looked down at her salad, her face flushed.

You were really out there all alone, Sunni said.

Godfrey nodded. Yeah, I remember you said that, Godfrey said. And I was like, God, youre right. Godfrey called George Tiller, the veteran abortion provider who was later killed at his Kansas church in 2009, to ask his advice. He told her to call an ambulance and send the patient to the hospital.

Honestly, the biggest pro-life doctor couldnt make up a passage like this. The doctor who has no business performing a surgical procedure because she doesnt have a back-up plan for an emergency. The doctor who doesnt have admitting privileges at a hospital. (Later in the story, she admits, Im not an OB-GYN, and Im not a surgeon….) The doctor who calls George Tiller during the medical emergency. The doctor who gets Tillers advice to dump the patient into the hospital ER. AND, the doctor who then dumps the patient into the local ER.

Thank you, Ms. Bazelon. Thank you, Paper of Record. Before reading this story, it was always a little hard to believe the honest accounts of what goes on in the real world of abortion. Not now.

A Higher Federal Court Has Already Rejected Same-Sex Marriageon Procreation Grounds

by Peter Sprigg

August 5, 2010

There is much to be said about U.S. District Court Judge Vaughn R. Walkers ruling in favor of same-sex marriage on August 4, and we will have more analysis of the opinion in coming days and weeks.

However, some media outlets have been reporting that this ruling is unprecedented because it is the first time that a federal court has tried to strike down a state marriage amendment on federal constitutional grounds. This is completely untrue. On May 12, 2005, U.S. District Court Judge Joseph F. Bataillon issued a very similar ruling striking down Nebraskas marriage amendment. This ruling, however, did not standit was struck down, unanimously, by a three-judge panel of the Eighth Circuit on July 14, 2006.

The Eighth Circuit, like a majority of courts that have ruled on this issue (including the state Supreme Courts of New York, Washington, and Maryland), declared that the states interest in promoting responsible procreation provided a rational basis for distinguishing between opposite-sex and same-sex couples in the definition of marriage. Yet Judge Walkers decision dismissed this compelling argument with the casual observation, Never has the state inquired into procreative capacity or intent before issuing a marriage license.

The Eighth Circuits ruling explains why this is not a compelling argument for mandating same-sex marriage. Excerpts are below (citations omitted):

The State argues that the many laws defining marriage as the union of one man and one woman and extending a variety of benefits to married couples are rationally related to the government interest in steering procreation into marriage. By affording legal recognition and a basket of rights and benefits to married heterosexual couples, such laws encourage procreation to take place within the socially recognized unit that is best situated for raising children. The State and its supporting amici cite a host of judicial decisions and secondary authorities recognizing and upholding this rationale. The argument is based in part on the traditional notion that two committed heterosexuals are the optimal partnership for raising children … . But it is also based on a responsible procreation theory that justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot. Whatever our personal views regarding this political and sociological debate, we cannot conclude that the States justification lacks a rational relationship to legitimate state interests.

Even if the classification … is to some extent both underinclusive and overinclusive, and hence the line drawn … imperfect, it is nevertheless the rule that … perfection is by no means required. Legislatures are permitted to use generalizations so long as the question is at least debatable. The package of government benefits and restrictions that accompany the institution of formal marriage serve a variety of other purposes. The legislature — or the people through the initiative process — may rationally choose not to expand in wholesale fashion the groups entitled to those benefits.

We hope that the Ninth Circuitand/or the Supreme Courtwill follow this reasonable precedent.

Adult Stem Cell Trial for Spinal Cord Injury in U.S.

by David Prentice

August 4, 2010

A Louisiana group has announced that they have enrolled their first spinal cord injury patient for a clinical trial using the patient’s own adult stem cells for treatment. The first patient enrolled is a paralyzed Iraqi war veteran, Marine veteran Matt Cole, who was paralyzed from the chest down in a 2005 insurgent attack in Iraq.

The FDA-approved clinical trial will primarily assess the safety of the method, and secondarily evaluate if the treatment can provide functional improvements. TCA Cellular Therapy is the sponsor of the trial.

Note that this is still a clinical trial; a report of results is expected in 2012.

Adult stem cells from olfactory tissue have also been used to successfully treat spinal cord injury patients.

Happy Birthday, Mr. President

by Jared Bridges

August 4, 2010

In addition to being Wednesday, today is also the birthday of FRC’s Washington, D.C. neighbor, President Obama. To mark the occasion, our neighborly FRC Senior Fellow Robert Morrison penned the president a greeting that turned out a tad too long for a Hallmark card, so our friends at The American Thinker have kindly agreed to publish it:

Today, August 4th, is your forty-ninth birthday, Mr. President. You share your special day with the U.S. Coast Guard. When I served in the Coast Guard as a Russian interpreter, I learned this birthday greeting: Sto lyet. May you live a hundred years!

The Coast Guard recently distinguished itself in attacking the BP oil spill. Although a few are grousing about the Coast Guard authorizing the use of chemical dispersants, my guess is that the embattled folks of the Gulf shore are cheering the Coast Guard. They certainly cheered the Guardsmen back at the time of Hurricane Katrina. The Coast Guard is one of the few federal agencies that nobody is mad at.

Birthdays are a good time for self-reflection. You must be wondering how things seem to have gone awry for you and your administration. You came in promising that the oceans would cease to rise, that the planet would begin to heal. You promised this, only to have billions of gallons of oil spilled on your watch. That BP, the perpetrator, was one of the major supporters of your presidential campaign hardly seems fair.

Read the rest of Bob’s birthday greeting at The American Thinker

Boy Scouts Build Men

by Rob Schwarzwalder

August 4, 2010

On Sunday, the New York Times carried a story by reporter Katharine Q. Seelye on the 100th anniversary Jamboree of American Scouting being held at Ft. A.P. Hill in Virginia.

In the dextrous patois of the elite Left, Ms. Seelye succeeded in talking down to nearly three million boys and their families. Instead of celebrating the myriad contributions of Scouting to our nation, her agenda-heavy story raised every shibboleth of American liberalism in an attempt to belittle a great organization.

In her account, we read nothing about young men mentored by older boys who become like brothers and strong men who serve as the father-figures many lads would never otherwise have. We never learn that Scouting has produced more presidents, astronauts, scientists, and leaders in business and religion and industry than readily could be numbered. Scouts provide millions of hours serving their communities —- including some of the neediest people among us —- each year. An incredibly impressive list of Scouting’s achievements and contributions can be found here.

This is, for me, a personal matter: My sons are Scouts, on track to make Eagle, and we attended part of the Jamboree. Our time was spent talking with boys from Seattle and Dallas, eating with others from New Jersey, trading patches of every shape and variety and seeing, in many displays and activities, the panoply of American ingenuity, grit and bravery (our Armed Forces were admirably represented) spread before us.

I have seen Scouts take boys and help turn them into confident, capable, resourceful young men whose character is well-defined and whose ambitions are informed by service and teamwork. Each week of the school year, and frequently throughout the summer, my sons join with boys of every race and ethnic heritage to laugh uproariously at ridiculous jokes and absurd skits, learn more skills than I could likely ever teach them and, through cooperation and friendly competition, subtly but indisputably get honed for manhood.

That’s what Scouting really is about: Manhood. Scouting teaches youths to become fine men, physically and mentally, men who believe in God and honor the law and defend our country. This seems to drive many liberals to distraction.

Here are some responses to the more piquant quips in Ms. Seelye’s recitation of Scouting’s inadequacies, through which she reveals not insight but a sad and clueless bitterness:

  1. Scouts do not bar atheists. Scouts affirm faith in God. Thereby, atheists bar themselves.
  2. Scouts bar homosexuals because homosexuality is incompatible with Scouts’ Judeo-Christian foundations and because of the many case of homosexual abuse of boys in Scouts over the decades, as Seelye herself notes in her article.
  3. Scouting does represent “wholesomeness,” but in today’s morally failing America that should be a source of celebration, not condescension.
  4. Admittance of girls would fundamentally change the nature of an inherently masculine organization. Although girls are allowed in Scouting until the age of 13, the name of the group is “Boy Scouts,” not “Child Scouts” or “Teen Scouts.” Girls Scouts of America and American Heritage Girls exist for a reason.
  5. Scouting actively reaches out to minority populations. Many of America’s most prominent African-American and Latino leaders have been involved in Scouting, and were it not for Scouting, many inner city youth would never experience the out-of-doors in a meaningful way. Perhaps if Ms. Seelye had taken a moment to visit BSA’s Website, she would have seen the large section devoted to “Ethnic and Generational Diversity,” and read the extensive report on Scouting’s demographic outlook.
  6. Scouting has lost numbers due the relentless assault on the family and on the virtues that long have been the bedrock of our nation. This is not the fault of Scouting but is, rather, a reflection on the values and conduct of a society that is losing its moral moorings. All the more reason for Boy Scouts.
  7. Scouting is not “in the woods,” as Seelye claims. Scouting is not some kind of quaint reliquary of an earlier age. It is alive and well, and knows exactly where it is.

Every week, millions of boys across America lift their right hands and, with three fingers pointing upward, recite the following. If these commitments are anachronistic or irrelevant to our national life, our country is in dire straits indeed:

Scout Oath (or Promise):

On my honor I will do my best

To do my duty to God and my country

and to obey the Scout Law;

To help other people at all times;

To keep myself physically strong,

mentally awake, and morally straight.

Scout Law:

A Scout is trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean, and reverent.

Disturbing Trends for Young Girls

by Family Research Council

August 3, 2010

The Sunday Times, a major publication of the UK, reported this weekend that the number of 11-year-olds taking contraceptive pills is soaring. According to the Times, the latest figures indicate that the number of 11- and 12-year old tweens on the pill has increased an astonishing five-fold in the past ten years.

Reasonable people will agree that something is very wrong here. It isnt normal or natural for 11 year-old girls to be sexually active. FRC reports and blogs over the last few months affirm this dangerous trend.

- In January, we wrote about the oversexualization of young girls, as indicated by the infamous director Roman Polanski explaining away his rape of a 13-year-old.

- In February, FRC reported that Planned Parenthood had a new report on sexual education. The report promotes contraceptive sex education for children as young as ten years old. Most disturbingly, the report advocates that children as young as ten be empowered to develop satisfying and pleasurable sexual lives.

- In March, FRC reported that Planned Parenthood was partnering with the Girl Scouts at the UN to promote Happy, Healthy, Hot, a guide for HIV positive teens and tweens: During a kids event at the U.N., the Girl Scouts passed out a sex brochure called Healthy, Happy, and Hot published by—you guessed it—Planned Parenthood. Full of ideas too pornographic to repeat, the guide caused plenty of controversy. It’s part of a joint project to bring better sexual health to girls as young as 10.

- In May, we wrote about the problem of trafficking and prostitution of children in the United States.

- In June we learned that a group of local high school boys created a fantasy sex league, that is, a draft list not of sporting teams to bet on but of young adolescent girls with whom they aimed to sexually ‘score.’ The league of high school boys would gain points by successfully accomplishing any one of a variety of sexual goals. The boys hosted parties where they would prey upon their victims.

- In July, FRC Senior Fellow Peter Sprigg wrote about a Helena, Montana sexuality education curriculum that exposes children in the earliest grades to graphic sexual information.

On a more hopeful note we also reported in June about a group in Australia which has had enough of the oversexualization and exploitation of girls. In their own words, Collective Shout is for anyone concerned about the increasing “pornification of culture and the way (pornography’s) messages have become entrenched in mainstream society, presenting distorted and dishonest ideas about women and girls, sexuality and relationships. Collective Shout has been successful in having offensive products removed from the marketplace. They publicly name and shame major corporations, advertisers, marketers and media selling products and services that objectify women and girls.

Jon Kyls Devastating Case Against Elena Kagan

by Family Research Council

August 3, 2010

Senator Jon Kylwhos one of the most effective members of the Senatejust laid out a devastating case against Elena Kagan.

In addition to all the things weve rightly heard so much aboutdont ask dont tell, military recruiters at Harvard, gun control, and terrorists rightshe highlighted that she failed to do her duty as solicitor general when it comes to the Defense of Marriage Act (DOMA).

Kyl did a masterful job of showing that, after she made the case that when a solicitor general gets involved in a case, it must vigorously defend any federal law that is challenged in court, she was fine with the Justice Department (DOJ) disavowing Congress justifications for DOMA in court in the ongoing challenge to DOMA. The DOJ brief in court said that the Obama administration regarded DOMA as discriminatory and supported its repeal, and that DOMAs purported policy justification should not survive even the most deferential and permissive judicial review.

Thats not any type of legal defense. Instead, its sabotaging your clients case.

Kyl then did a fantastic job addressing two other hot-button issues with profound implications across the spectrum of constitutional interpretationhow to interpret the Second Amendment right to bear arms and the limits of federal power under the Commerce Clause. Her take on both of those issues would have terrible applications for all sorts of important issues, including family issues.

And finally, he made the point that Kagan is not qualified under traditional criteria for the Supreme Court. Although weve had justices with no prior judicial experience, weve never had one who has no judicial experience and only two years total lawyers experience.

All in all, a compelling case for opposing Elena Kagans confirmation to the Supreme Court. Well done, Senator Kyl.

Craig Venter on the Human Genome Sequence, Life, and Francis Collins

by David Prentice

August 2, 2010

Geneticist Craig Venter recently gave an interview to Der Spiegel, and discussed the Human Genome Project, what we’ve learned from sequencing the human genome, making synthetic cells, and a few other topics. The interview is vintage Venter and worth reading to get his perspective.

One example, his view on the significance of having the human genome sequence:

SPIEGEL: Why is it taking so long for the results of genome research to be applied in medicine?

Venter: Because we have, in truth, learned nothing from the genome other than probabilities. How does a 1 or 3 percent increased risk for something translate into the clinic? It is useless information.

And one other example, his opinion of NIH Director Francis Collins, faith, and science:

SPIEGEL: Some scientist don’t rule out a belief in God. Francis Collins, for example …

Venter: … That’s his issue to reconcile, not mine. For me, it’s either faith or science - you can’t have both.

SPIEGEL: So you don’t consider Collins to be a true scientist?

Venter: Let’s just say he’s a government administrator.

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