Category archives: Government

Truth Wins at Arkansas Supreme Court Regarding Parentage on Birth Certificates

by Peter Sprigg

December 9, 2016

In June of 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges that same-sex couples could not be denied marriage licenses by states. However, on December 8, 2016, the Arkansas Supreme Court correctly ruled that the Obergefell decision should not be used to re-write all state laws relating to family, parenthood, and vital records, when they are unrelated to the issuance of marriage licenses.

The decision, in the case of Smith v. Pavan, overturned a lower court decision that had declared the Arkansas law governing birth registration unconstitutional. The statute in question says that in the absence of a court order or agreement by all parents and spouses involved,

If the mother was married at the time of either conception or birth or between conception and birth the name of the husband shall be entered on the certificate as the father of the child.”

The law had been challenged by three lesbian couples. In all three cases, one of the women had borne a child who was conceived through artificial insemination involving an anonymous sperm donor as the father. When the children were born, the couples sought to have the names of both women listed on the birth certificate as the child’s parents. The Arkansas Department of Health (ADH) refused.

The legal principle involved has long been known as the “presumption of paternity.” If a married woman gives birth to a child, her husband is presumed to be the father of that child. Something which is factually true in the vast majority of cases is simply presumed to be true under the law.

Advocates of same-sex marriage and homosexual parenting, however, seek to convert the “presumption of paternity” into a gender-neutral “presumption of parentage.” Under this view, the legal spouse—regardless of sex—of a woman who gives birth is presumed to be the child’s other parent.

In other words, they would have the law go from presuming something that is almost always factually true to presuming something that cannot possibly be factually true—namely, that two women are both the biological mother of a newborn child.

Fortunately, the Arkansas Supreme Court rejected the absurd outcome of presuming the impossible.

In a model of judicial restraint, they interpreted the words of the statute by “giving the words their ordinary and usually accepted meaning in common language.” Noting that the dictionary definition of “husband” is “a married man,” and of “father” is “a man who has begotten a child,” they concluded that “the statute centers on the relationship of the biological mother and the biological father to the child, not on the marital relationship of husband and wife.”

The court’s opinion cited an affidavit by the ADH’s Vital Records State Registrar elaborating on the rationale for this approach:

The overarching purpose of the vital records system is to ensure that vital records, including birth certificates as well as death certificates and marriage certificates, are accurate regarding the vital events that they reflect…

Identification of biological parents through birth records is critical to ADH’s identification of public health trends, and it can be critical to an individual’s identification of personal health issues and genetic conditions.

To emphasize the significance of—and differences between—biological motherhood and biological fatherhood, the Arkansas Supreme Court also cited language from a 2001 U.S. Supreme Court decision involving a question of citizenship for children born out of wedlock and outside the United States to one American parent. Ruling (in Nguyen v. INS) that Congress could treat children of American fathers differently from children of American mothers, the Court said,

[t]o fail to acknowledge even our most basic biological differences—such as the fact that a mother must be present at birth but the father need not be—risks making the guarantee of equal protection superficial, and so disserving it. Mechanistic classification of all our differences as stereotypes would operate to obscure those misconceptions and prejudices that are real… The difference between men and women in relation to the birth process is a real one, and the principle of equal protection does not forbid [legislative recognition of that fact].

Ironically, the author of the decision in Nguyen was Justice Anthony Kennedy—who also wrote the Obergefell decision on marriage.

LGBT activists, of course, will deplore the Arkansas decision. Perhaps, in the wake of Donald Trump’s election to the presidency, they and other liberals will even be tempted to lump it together with what they stereotype as other acts of “bigotry” committed by “angry white males.” Yet the Arkansas Supreme Court has a female majority—four women and three men. Three of the four women joined the majority opinion in the birth certificate case, while two of the three men dissented. And the opinion of the court was written by Associate Justice Josephine Linker Hart—a female pioneer in the legal profession in Arkansas, an Army veteran, and a woman with Cherokee ancestry.

The truth is that every child has both a mother and a father—even if the latter is only an anonymous sperm donor. The truth is that two women (or two men) alone can never conceive a new human life. The truth is that a birth certificate or registration is supposed to record the factual circumstances of a biological event—the birth of a child.

When the Obergefell decision was handed down, those celebrating it used a simple slogan: “Love Wins.” (The fallacy in that was the assumption that any and every relationship characterized by “love” is constitutionally entitled to be designated a “marriage.”)

Pro-family Americans can be grateful that, at least in the Arkansas Supreme Court, “Truth Wins.”

Question of the Week - September 26, 2016

by Daniel Hart

September 26, 2016

Question: Do you have pamphlets that explain the importance of Christians participating in the voting process?

FRC: We have two brochures that give a thorough explanation on the call of all Christians to fully participate in all aspects of civic life. They are “Why You Should Be Involved“ and “Why Christians Should Seek to Influence Government for Good.”

Opponents of Freedom Reveal Their True Agenda: Intolerance

by Travis Weber

May 12, 2016

Before same-sex marriage was constitutionally enshrined, we heard about how it would not affect anyone’s religious freedom. It was just about access to the marriage license, we were told.

Anyone who thinks opponents of Christian morality are not interested in forcing everyone to conform to their views need only glance at a motion filed in federal court in Mississippi reacting to a law which provides, of all things, exemptions on conscience grounds.

In their motion, this group of opponents asks the court to make sure that anyone “recusing himself or herself under Section 3(8) of HB 1523” be forced to “desist from issuing any marriage licenses to any other couples, including opposite-sex couples.”

Why make this request if access is the only issue? No access to any licenses has been impeded. But we know it is not about that. These opponents are requesting clerks not issue any licenses because they just can’t stand the idea that someone would not agree with their same-sex marriage.

The opponents proceed to read into motives and offer blanket generalizations:

Thus, although the most recent efforts by the State of Mississippi to disregard the constitutional rights of LGBT Mississippians through HB 1523 may be somewhat more subtle than the “steel-hard, inflexible, undeviating official policy” of the past, see United States v. City of Jackson, Miss., 318 F.2d 1, 5 (5th Cir. 1963) (ordering end of racial segregation in bus and railway terminals), the underlying impulse is exactly the same.” (emphasis mine)

But calling all genuine Christians everywhere complete racists isn’t enough.

They also mischaracterize the law as “exhorting state residents to discriminate against their gay, lesbian and transgender neighbors in a wide variety of circumstances.” Where is this behavior “exhorted?”

They also want the state to be forced to “post all recusal notices to a prominent place” on a government website. Shaming, anyone?

The real motive is obvious. It’s to force those who now disagree to eventually agree. Nothing more (for now), and nothing less.

Question of the Week

by Daniel Hart

May 9, 2016

With every passing day, it seems, Christian values are increasingly being pushed out of the public square and out of public policy. What can ordinary Christian citizens do to make their voices heard in their day to day lives and in Washington? FRC is here to help. Every Monday starting today here on the FRC Blog, we will publish a Question of the Week that we receive, along with our answer.

Feel free to send us a question you may have about how you can better live out your faith beyond the four walls of your church, or about any specific value that FRC continues to stand for, whether it be life, marriage and family, or religious liberty. Go to frc.org/contact-frc and enter “Question of the Week” in the Subject line. Thank you for standing with us!

 

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Question: FRC seems to be good at getting information out. This is great, but I feel helpless in the grand scheme of things. There is so much discussion and it does not seem to get us anywhere. How can we stand up for ourselves together as a Christian family, in a respectable Christian manner? It’s the first time in my life that I am sometimes afraid to wear my cross. I do it anyway, because I am very strong in my faith and I love Jesus, but I do feel a bit uneasy at times. Thank you for your time.

FRC: We’re encouraged by your desire to glorify God in the public square. As God’s stewards on earth whose entire purpose for living is to give all glory, honor, and praise to Him in every sphere of life, God has called many of us to work for Him in the public square—some of us in Washington, D.C., others at the state level, and still others at the local level. Thank you for realizing the importance of Christians being active members of society who are willing to promote biblical family values to our government officials. First, do your civic duty by voting according to your Christian conscience. In addition, you can write emails or make calls to public officials at the local, state, and federal levels, and encourage neighbors, friends, and co-workers to do the same. (You can do this by signing up for our Alerts here.) For more information on how you can get involved in the public square, please go to the volunteer page on our website at frc.org/volunteer. Please also ask your pastor if he would like to join our pastors network at watchmenpastors.org, and consider creating a Culture Impact Team at your church: cultureimpact.org. Please continue to pray for our nation and its leaders. This is the most influential action we can take: may God’s will be done. God’s Word is a source of great comfort and hope. Proverbs 21:30-31 says, “There is no wisdom, no insight, no plan that can succeed against the Lord. The horse is made ready for the day of battle, but victory rests with the Lord.” Thanks again for your desire to help us transform our culture for God’s glory. May He bless you.

Reflections on Oral Argument in United States v. Sterling

by Travis Weber

April 27, 2016

After oral argument this morning in United States v. Sterling before the U.S. Court of Appeals for the Armed Forces, there is reason to remain hopeful that the court will see the clear Religious Freedom Restoration Act (RFRA) claim in this case and that the appellant will prevail on that claim. The case, concerning a Marine lance corporal’s posting of verses of scripture at her desk, and subsequent court martial for refusing to remove them, has significant implications for religious freedom in the military.

As Paul Clement, arguing for the appellant, pointed out: the RFRA analysis is straightforward in this case. RFRA protects “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Clearly, posting Bible verses are an exercise of religion. And this exercise was substantially burdened in this case by the special court martial conviction imposed after the lance corporal refused to compromise her religious exercise by taking down the verses. The Supreme Court has found a substantial burden on much less punishment from the government. While not diminishing the unique needs of the military to maintain good order and discipline, Clement highlighted the clear religious freedom violation in this case.

The government tried to dispute the presence of a substantial burden, but the cases on this point are not helpful to the government. Its attorney tried to argue that a hypothetical religious belief requiring adherents to write in chalk on the sidewalk in front of the White House would not be allowed and is therefore not substantially burdened, but this is a flat-out misunderstanding of RFRA! Such a belief may in fact be substantially burdened, but would not be permitted because the government has a compelling interest in the security of that property.

The government also wanted to focus on the need of the lance corporal to obtain some sort of “accommodation,” claiming the way it was handled here showed the “lack of a substantial burden.” But this is a mere attempt to distract from the plain text of RFRA.

Upon questioning from the judges, the government expressly admitted the quite obvious fact that RFRA applies to the military. (One judge seemed to grasp that the government was in a tough spot because RFRA applies to the “government as a whole,” which includes the military.) The government also admitted it didn’t know this was a RFRA case in the trial below, which (if believable)—while not letting it off the hook—further highlights sloppy handling of the claim below. (The lance corporal invoked DODI 1300.17, which contains the same standard as RFRA, and other evidence clearly indicates she was bringing a religious exercise claim). While the government tried to shift attention away from RFRA because a straightforward RFRA analysis is harmful to its case, it is clear that the military knew religious exercise was at play here, and substantially burdened this exercise by court martialing the service member engaged in it.

The government wanted to argue that because the lance corporal (who did not have the helpful assistance of an attorney in the courts below, which the chief judge noted required granting her actions more deference) did not literally say “RFRA” or “Religious Freedom Restoration Act,” she has now waived the religious exercise claim. This is just silly. The government clearly was on notice that her claim was religious.

Paul Clement pointed this out in his closing argument, noting there is no “magic words” test in applying RFRA. In addition, the trial court clearly recognized the religious nature of the postings, he said. Finally, the “accommodation” issue does not decide the substantial burden question! (The government seemed to need help understanding this.) In summary, the lower court falsely applied a far too restrictive understanding of RFRA, and must be reversed, Clement argued.

A win for the appellant in this case is a win for both religious exercise and the readiness of our military as a whole, for our armed forces can only be strengthened as their individual members draw upon faith to face hardship and danger in battle.

What should happen here? As Clement noted, there should be an obvious application of the text of RFRA. When this analysis is conducted, the lance corporal wins. Let us hope the court sees this as clearly as it decides this case in the coming months.

Beware of False Rhetoric on Chinese Population Control Modifications

by Chris Gacek

November 5, 2015

Last week, news came out of China that its “one-child” population control strategy was being “abandoned.” This is ABSOLUTELY NOT TRUE. The PRC has merely adopted a “two-child” policy. The entire institutional structure of coercion has been left in place, and the government will still require birth permits. Also, existing second children are not going to lose their non-person status.

That said, this relatively minor change is being forced on the central planners by the complete demographic cataclysm they have brought upon their own nation. See my colleague Rob Schwarzwalder’s excellent article in the Christian Post for background information.

The Communist Party is not going to relinquish coercive population control because this policy and its implementing apparatus lie at the core of the Chinese security state.

Lucy Hornby discussed a different aspect of the news in her article for the FT Weekend entitled “Bleak Future for China’s Hated Family Planners.” It appears that forcing people to abort their children with violence, threats of familial torture, and demands for bribes is not the Dale Carnegie way.

I think Hornby’s fascinating article probably overstates the gravity of the threat to the population control bureaucracy. That said, there are some great observations describing the way the Chinese people feel about these population thugs. She notes that there are “millions of hated government officials” working at this. They cause “heartbreak” to the population by “enforcing abortions and sterilizations, meting out crippling fines and punishments…” Their actions include “even removing infants from their families on behalf of the state.” (It’s probably more like killing them on behalf of the state.)

She observes, “Family planning workers are not required to have any medical education – and they are hated.” Apparently, “[i]n the 1980s, when the forced abortion campaign was at its peak, hostility ran so deep that family planning officials travelled by convoy into villages where they were sometimes greeted with a hail of stones….” In social media, one person wrote an excellent question: “Why do we hate the Japanese army but not the family planning officials?”

And, of course, the officials are incredibly corrupt. Bureaucrats have to grant permission to have even the first child. Villagers are “fined” arbitrarily for random infractions that can be leveraged for a bribe. In thirty-five years since 1980, the government has accumulated $315 billion (with a “b”) one analyst estimates. That is a massive amount of money given the poverty in China’s rural areas, and the money has never been audited.

The expert Hornby consulted believes the whole system will be terminated in three years. We shall see. I have my doubts. It is hard to imagine a bureaucracy this evil going softly into the night.

Clearly, the “two-child” policy makes no sense, and the legitimacy of the program has been shattered. An American administration that cared about human rights might be able to push it over, but that would not be this cold-hearted, inhumane administration. That will have to wait until 2017.

Sen. Mike Lee’s Senate Speech on Planned Parenthood

by Rob Schwarzwalder

September 14, 2015

U.S. Sen. Mike Lee’s eloquent speech on Planned Parenthood in the Senate last week deserves wide distribution.  Here is a short excerpt; speaking of the videos released by the Center for Medical Progress, the Senator said:

The evidence points to only one conclusion: Planned Parenthood really does these horrifying things—and makes money at it, and laughs about it over lunch.  But aside from the primary evidence, Mr. President, do you know how else we know it’s true?

Because if it were false, we would know for sure. The mainstream media—Big Abortion’s loudest shoe-banger of them all—would be thundering Planned Parenthood’s vindication from every headline, every home page, every network satellite. If the videos were false, Mr. President—if a pro-life group somehow fabricated this narrative of Planned Parenthood’s greed, barbarism, and cruelty—it would be a story.

Who are we kidding? It would be the story: a career-making scoop, with fame and Pulitzer Prizes and lucrative book deals and speaking tours awaiting the journalist who broke it. And yet, if you open a newspaper, click on the legacy media sites, and turn on the news… nothing. The major networks have gone dark on the videos over the last month. And major newspapers have scrubbed the scandal from their front pages.

Why the silence? Simple. They know it’s true, too.

Watch the full speech, or read the text, on Sen. Lee’s website. 

An Insufficient Accommodation

by Lindsey Keiser

August 3, 2015

Can an accommodation be accompanied by a requirement that essentially negates the accommodation and still be seen as sufficient?

To answer this question, we can use a simple example, which arises in the context of employment.

When you ask for a day off – and that day off is granted – you do not expect to be required to come in on your day off in order to tell your boss you won’t be there for the day. That would negate the grant of the day off.

The same is true when religious organizations ask for an accommodation from the employer mandate of the Affordable Care Act and the government offers an accommodation which does not fully meet the requests of these organizations regarding protection of their religious beliefs. Such an “accommodation” does not eliminate the burden on the religious organizations, yet courts have been approving the government’s “accommodation” as sufficient. Continuing the string of judicial denials of religious organizations’ requests, the Tenth Circuit recently denied an appeal from the Little Sisters of the Poor Home for the Aged (Little Sisters) finding that, with the “accommodation” offered by the government, there was no substantial burden on the group’s religious beliefs.

Religious organizations like Little Sisters, Priests for Life, and Notre Dame sincerely believe that life begins at conception so they object to providing abortive contraception as part of their employee health insurance plans. As a result of their sincere belief, these non-profits have asked for an accommodation under the HHS Mandate citing the protections of the First Amendment and the bar on the government substantially burdening the free exercise of religion. The religious non-profits have asked to not be required to participate in any aspect of the provision of abortive contraception.

Requiring these organizations to provide abortive contraception in contravention of their beliefs would be a substantial burden which HHS has recognized and for which HHS has created an accommodation. The current accommodation allows religious non-profits to voice their objection to providing abortive contraception by filling out a form or directly notifying HHS. After HHS receives notice of the objection, the insurance company offers and provides the abortive contraception to the employees.

The question remains, however, whether this “accommodation” is actually sufficient.

Yes, the organizations only have to fill out a form or notify HHS of their religious objection, but the mechanism of notification is not the problem. The problem is that the accommodation doesn’t change the end result. Abortive contraception is still being provided as a result of the fact that the organization provides health care for its employees.

As some dissenting judges in the Priests for Life stated, “Where the government imposes a substantial burden on religious exercise and labels it an accommodation, that burden is surely as distressing to adherents as it would be if imposed without such a designation.”

The answer to whether there is a substantial burden even with the current accommodation is tied to our understanding of an accommodation. When we look at the example in the graphic above, it is fairly clear that the agreement made by the boss does not adequately meet the employee’s request for a day off. Similarly, we should ask whether the current accommodation adequately meets the requests of religious organizations to not have to provide abortive contraception – or, as the Little Sisters have pointed out, to “take actions that directly cause others to provide them, or otherwise appear to participate in the government’s delivery scheme.”

The answer is no, the accommodation does not sufficiently meet the requests of these religious organizations and therefore, places a substantial burden on their religious exercise. The form or notification to HHS is an insufficient accommodation because the opting-out by the religious organizations is the direct cause of the receipt of coverage. The dissenting judges in the Priests for Life pointed out, “the harm plaintiffs complain of … is from their inability to conform their own actions and inactions to their religious beliefs without facing massive penalties from the government” (emphasis added by the dissenting judges). This harm does not disappear because their relationship to the provision of the abortive contraception becomes a little more attenuated.

Just as a day off from work which requires you to come into work is not really a day off, an insufficient accommodation is no accommodation at all.

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