Category archives: Legislation

Federal Judge and the ACLU Agree that RFRA Protects Religious Exercise in the Military

by Travis Weber

July 1, 2015

In another affirmation that the Religious Freedom Restoration Act (RFRA) protects the constitutional right of free exercise for military service members, a federal judge recently ruled that the statute protected the rights of a Sikh to receive a grooming accommodation while enrolled as an Army ROTC cadet at Hofstra University.

After the Army denied the student’s accommodation request which was made when he sought to enter ROTC, the ACLU filed suit on behalf of the student, alleging that the denial violated RFRA (and citing the standard under the recent DOD Instruction 1300.17). In its complaint, the ACLU asserted the Army policy “substantially burdens his religious exercise because it mandates conduct that is prohibited by his religious beliefs and substantially pressures him to modify his behavior in violation of his faith.”

In ruling on these claims, the federal court in the District of Columbia noted that while there is judicial deference to military decision making, RFRA also clearly applies to the military; indeed, “[t]he Department of Defense expressly incorporated RFRA into its own regulations effective January 22, 2010.”

Under RFRA, if an individual can show that government action has substantially burdened their religious exercise, then the government has to show it has a compelling reason for burdening the belief, and has done so in the least restrictive way possible.

In this case, there was no dispute that the plaintiff’s religious beliefs were sincere, and the court found that they were substantially burdened:

Therefore, there is no dispute that the Army’s refusal to grant plaintiff the accommodation that would enable him to enroll in ROTC while maintaining his religious practice was a government action that required plaintiff ‘to choose between following the tenets of [his] religion and receiving a governmental benefit.’” Such a denial “constitutes a ‘substantial burden’ under RFRA.”

The court acknowledged that the military is a distinct area of society with very unique concerns regarding order and discipline. However, Congress clearly meant RFRA to apply to the military and the statute clearly applies to situations like this.

Its analysis continued: “This case appears to be the first to squarely present the question of how a court is supposed to incorporate traditional deference to the military into the RFRA strict scrutiny analysis.” Therefore, the court looked to an area to which Congress also clearly meant RFRA to apply—prisons. In that context, the Supreme Court ruled earlier this year in Holt v. Hobbs that a sister statute with the same standard—the Religious Land Use and Institutionalized Persons Act—required the strict scrutiny standard to be applied to each situation in a “‘more focused’ inquiry” assessing whether the religious exemption can be granted.

The court dismissed the Army’s arguments that earlier cases—including Goldman v. Weinberger—require deference here, noting that “those cases predate RFRA.” Instead, the court chose to look to the framework laid out in Holt.

The Army also tried to argue for deference on the theory that it was better equipped to deal with social changes on its own (such as the repeal of “Don’t Ask, Don’t Tell”), but the court rejected that argument, noting that “even if it involves an important matter of public policy and evolving social norms, Congress has already placed a thumb on the scale in favor of protecting religious exercise, and it has assigned the Court a significant role to play.”

The court continued by ruling that the Army has not shown that denying the accommodation here (while granting numerous such accommodations in other cases) advances any compelling interest of the military. Notably, “[t]he Army conducted an internal examination of the effect of [another Sikh’s] religious accommodation on his service, and the study concluded that “the Soldier’s religious accommodations did not have a significant impact on unit morale, cohesion, good order, and discipline,” and that it “had no significant impact on his own, or any other Soldier’s, health and safety.”

The Army’s heavy reliance on uniformity in denying this accommodation and assertion that “compliance with Army grooming standards facilitates ‘the ability to assess a Soldier’s competency and attention to detail’” is irrelevant to the religious basis of the requested accommodation here and fails to satisfy “the individual assessment that is fundamental under RFRA.”

For “the accommodation this plaintiff seeks does not stem from any lack of self-control, dedication, or attention to detail. To the contrary: plaintiff seeks an accommodation because he faithfully adheres to the strict dictates of his religion. So even if, in some cases, a soldier’s failure to follow the Army’s standards might signal a rebellious streak or reflect a lack of impulse control or discipline, LTG McConville’s decision fails to grapple with the fact that any deviation from the rules on plaintiff’s part flows from a very different source. And therefore, the decision lacks the individual assessment that is fundamental under RFRA.”

In concluding, the court affirmed that it would not give blind deference to the claims of even very senior military decision makers as sufficient to trump religious exercise rights:

Notwithstanding [LT General McConville’s] thirty-four years of experience in the Army … and his superior judgment about military matters, adopting his conclusion [that the accommodation should be denied] without more would entail abdicating the role that RFRA requires the Court to play.

Finally, the court noted that even if there was a compelling interest here, the Army had not accomplished it by the least restrictive means—it had rejected the plaintiff outright, instead of at least permitting him to initially enroll in the ROTC program (during which time he is not yet commissioned).

The ACLU did well in laying out robust religious freedom arguments so far in this case. It merely remains for the organization (and others like it) to do so in other contexts. These advocates must see that after (rightly) supporting the Sikh’s religious exercise in this case, such support must flow to all religious exercise in order to consistently support religious freedom and the First Amendment. Anything short of that is picking and choosing the contexts in which the advocate wants the First Amendment to apply—and that is certainly not supportive of constitutional rights for all.

This case is certainly a win for the free exercise of religion in the military. It is also a case likely to produce odd bedfellows; the ACLU is supporting robust free exercise in a case involving a Sikh, but conservative Christians, Muslims and others concerned about religious freedom in the military will see it as helpful to their own causes. And rightly so. Congress passed a statute restoring strong free exercise protections. It did so with strong bi-partisan support, and made clear the law applies to the military. At least for now, a court has affirmed that the statutory law on religious freedom in the military supports a strong and robust free exercise of religion.

Is POT a Laudable Pursuit?

by Robert Morrison

June 17, 2015

Some in the conservative movement seem confused by the rush to legalize marijuana. Maybe we should run with the crowd, these folks are asking themselves. Maybe we’ll be more popular with the young. Maybe the elders of the tribe should follow the youngest one, they say.

Maybe NOT. We elders have all been 18; none of these young Americans has been fifty yet. And we want them all to get to be fifty.

My friends Bill Bennett and Seth Leibsohn have penned this important column in the Los Angeles Times.  Here, they raise an important warning about the rush to reefers.

What I like best is their quote from Lincoln. The purpose of government is to “clear the paths of laudable pursuit.” This might be called the Lincoln Corollary to the Declaration of Independence. When some mistakenly think that Jefferson’s wonderful phrase “pursuit of happiness” implies hedonism and nihilism, or a laissez-faire attitude toward personal and public morality, Lincoln gets us back on track with that laudable pursuit line.

Do we have too many young men finishing school, pursuing skilled vocations, signing up for the military, marrying, fathering children, serving in local volunteer fire departments, and coaching Little League?

If you are in favor of legalizing pot, do you think we haven’t had enough Fergusons or Baltimores?

We owe the young our best judgment. I didn’t do drugs as a young man, but I was an avid smoker. I really enjoyed lighting up. I valued the camaraderie of a smoke break with my buddies in the military.

Last October 27, I was leaving my local convenience store with my coffee in hand. A fellow in front of me held the door and, just as I exited, he lit up.

I did inhale. It was my first inhaling in thirty-seven years. And I instantly remembered why I liked smoking cigarettes.

We shouldn’t “play the Pharisee,” another great Lincoln phrase. We shouldn’t act holier than thou. But we owe our young friends our best guidance for them and for ourselves.

Or else, what are those “better angels of our Nature” for?

Architecture, Values and the March for Life

by Rob Schwarzwalder

January 8, 2015

It is difficult to look at scenes of great universities and historic colleges and not be moved by the architecture portrayed. Traditionally, institutions of higher learning have wanted to display their seriousness of purpose and devotion to great thought and leading-edge research in the buildings they have constructed. Thus, some of the most beautiful public spaces in our country, and indeed the world, are found on American college grounds.

Architecture is important. As Winston Churchill said to the House of Commons during the peak of World War II, “We shape our buildings; thereafter they shape us.” So consider what contemporary architecture says about today’s halls of knowledge. Edifices crafted out of shiny glass and sharp edges, boxes in which people are warehoused instead of buildings that invite contemplation or ennoble creativity.

What does this say about our culture’s view of human dignity in our time? Of the pursuit of knowledge and the purpose of research?

There’s nothing wrong with utility, but utility without beauty is a form of reductionism: Man as machine whose chief end is output rather than man as image-bearer of God whose chief end is to glorify Him through noble pursuits. The architecture of one’s time displays that time’s values. And the values of our time are deeply troubling.

As is widely recognized, much of modern academic life either is actively and unapologetically anti-Christian or at least so “tolerant” it welcomes the debased and debasing. Yet thankfully, these approaches to truth have not penetrated the hearts and minds of many brave academics and their students.

For example, later this month thousands of college students will mark the grim 42nd anniversary of the Supreme Court’s Roe v. Wade ruling. They will meet to remember the 57 million Americans destroyed in their mothers’ wombs due to the reduction of human value to one of preference, convenience and radical personal and sexual autonomy. Family Research Council will be joining many of them as, together, we participate in the March for Life on the National Mall here in Washington, D.C. on January 22.

If you can’t join us on the date, watch our 10th annual “ProLifeCon” online. ProLifeCon is “the premier conference for the online pro-life community. With new pro-life majorities in both the House and Senate, legislative momentum at the state level, and Americans increasingly identifying with the pro-life movement” FRC believes 2015 will be a year for hope. Listen to pro-life leaders like FRC president Tony Perkins, Kristan Hawkins of Students for Life and many others as they discuss the year ahead and what the pro-life community can do to advance the human dignity agenda in the new year.

At FRC, we celebrate the eternal truth that in His grace, God has made all men and women, from conception until natural death, “a little lower than the angels” (Psalm 8). The architecture of our building – stately but warm, an edifice designed to remind all who see it of human dignity and personal warmth - is a daily reminder of it.

An Active President: Obama on the March As the GOP Preps to Run Congress

by Rob Schwarzwalder

December 18, 2014

Since last month’s election, the President has been a busy fellow. He’s traveled to China, heralded what he called a “turning point” in American military affairs, “signed a Presidential Memorandum that prohibits future oil and gas drilling in Alaska’s Bristol Bay” and land areas near it and announced a new director for the White House Council for Strong Cities, Strong Communities, to boot.

FRC takes no formal position on these issues, or on those that follow (with one exception). Rather, they are listed to make the point that Mr. Obama is not going suddenly to become an inactive Chief Executive. He has an agenda the bulk of which is opposed by conservatives. Regardless, if conservatives think he will simply fold his hands and let the new Republican majorities in House and Senate do as they will, they kid themselves.

Following is a rundown of other significant post-November 4, 2014 actions by Mr. Obama; the last, on international religious liberty, is not explicitly presidential but relates to a key presidential appointment at the Department of State.

Environment: In addition to his largely unnoticed decision regarding Bristol Bay, “Obama’s most recent move is committing the U.S. to a $3 billion contribution to an international fund that seeks to help developing countries address climate change, which he will announce this weekend. It’s the president’s second major climate action in a week, following Wednesday’s announcement of a bilateral climate agreement with China. Under the agreement, the U.S. will cut its greenhouse gas emissions by 26 to 28 percent by 2025, while China will begin reducing its own emissions by 2030.”

Cuba: Senator Marco Rubio (R-FL), the son of Cuban immigrants, gave an eloquent and impassioned critique of the President’s announcement on normalizing relations with Cuba last evening; read his Wall Street Journal op-ed on the Obama decision, as well. The Washington Post also made a potent argument in an op-ed titled, “Obama gives the Castro regime in Cuba an undeserved bailout” (yes, that Washington Post; even a stopped clock is right twice a day): “The Vietnam outcome is what the Castros are counting on: a flood of U.S. tourists and business investment that will allow the regime to maintain its totalitarian system indefinitely. Mr. Obama may claim that he has dismantled a 50-year-old failed policy; what he has really done is give a 50-year-old failed regime a new lease on life.”

Immigration: With respect to his Executive Order on immigration, my personal take is not on the content of the orders but instead their basis in the U.S. Constitution: “Mr. Obama hasn’t gotten what he wants, so he is acting like a monarch unconstrained by legality. This is not constitutional, republican governance. It is something else altogether – something that should evoke in everyone who values his Constitution-based liberty apprehension about what might come next.”

Internet: “Net neutrality” demands a bit more explaining. Mr. Obama has asked “the Federal Communications Commission to regulate broadband Internet service as a public utility,” writes Michael Hendrix in National Review. “All Internet traffic would be treated equally, no matter the size or pace of demand. Net neutrality is a relatively young concept based on the much older notion of ‘common carriage,’ which required providers of basic infrastructure to offer common service to all.”

Yet as Nancy Scola notes in the Washington Post, At the center of the debate is a service known as IANA, or the Internet Assigned Numbers Authority. Operating almost entirely out of the public eye, IANA keeps tabs on the numerical directory that makes sure the global Internet runs smoothly.” And, Scola continues, though “Republicans in Congress managed to slip a provision into the massive $1.1 trillion spending bill passed by the Senate this (past) weekend that would prevent the Obama administration from giving up part of its oversight of how the Internet runs. Observers say, though, that there’s little chance that the GOP’s legislative language will actually slow the process at all.

Religious Liberty: FRC does take a position on international religious liberty: We’re absolutely, unequivocally for it. Earlier this month, the Senate confirmed Rabbi David Saperstein to be the State Department’s new U.S. Ambassador-at-Large for International Religious Freedom. In his comments at his Senate confirmation hearing in September, the Rabbi said, “Religious freedom faces daunting and alarming challenges worldwide,” Saperstein said at his confirmation hearing in September. “If confirmed, I will do everything within my abilities and influence to engage every sector of the State Department and the rest of the U.S. government to integrate religious freedom into our nation’s statecraft and foreign policies.”

Amen. Christians should be praying for the Rabbi and his team as they work to advance religious liberty around the world. It’s in the interest of our country, not to mention one of the great moral imperatives of our time.

This President means no less business today than he did on January 20, 2009. That means that conservatives will have to think carefully about how we advance our priorities on issues involving faith, family and freedom in the coming two years leading up to the next presidential election. We have to consider our larger strategy as well as issue-specific tactics and also decide what our priorities are and aren’t.

Conservative leaders and activists are, of course, doing this. Let’s hope they coalesce around what issues are of highest importance and then move forward both boldly and wisely, aware that President Obama is a shrewd and determined political foe.

It’s not enough to be right. We also have to be smart.


Schwarzwalder previously was chief-of-staff for two Members of Congress and was a presidential appointee in the George W. Bush Administration.

DC Council votes in support of forcing abortion coverage

by Travis Weber

December 18, 2014

Yesterday, the DC Council passed a bill called the “Reproductive Health Non-Discrimination Act of 2014,” which could force employers in the District of Columbia (including the Family Research Council) to cover abortions.

The actual language of the bill would prevent employers from “discriminat[ing] against” an individual with respect to the “compensation, terms, conditions, or privileges of employment” because of an individual’s “reproductive health decisions.” The definition of “reproductive health decisions” includes but is not limited to “a decision by an employee … related to the use or intended use of … contraception or fertility control or the planned or intended initiation or termination of a pregnancy.” In plain terms, no employer would be able to say they don’t want to cover an abortion.

There is no exemption in the bill for any employer who might object to such coverage. This would have drastic consequences for a number of employers and organizations in the District who not only might object to such coverage on conscience grounds, but whose actual purpose for existing is to stop abortion because they believe it is a moral evil. This is the essence of a Freedom of Association violation – disrupting the very purpose of autonomous, private groups through legislative bulldozing tactics, thus rendering the groups’ existence meaningless.

Aside from this injustice, there are a number of legal problems with the bill. As pointed out by Alliance Defending Freedom, the bill would violate the Religious Freedom Restoration Act, the Weldon Amendment, and the First Amendment protections of Free Speech, Free Exercise, and Freedom of Association.

Even the mayor’s office recognized the legal problems with the bill. Yet, more interested in ramming its policies down every District employer’s throat, the DC Council went ahead and passed the bill in defiance of the mayor’s concerns. One of the mayor’s concerns was a potential Equal Protection violation because the bill only addressed protections for women. In response, the Council reportedly added protections for men as well. That the Council would make this correction, and leave other groups who expressed religious and associational concerns hanging out to dry, only confirms the devious nature of the DC Council.

If following one’s conscience is to retain any meaning at all for those living and working in the District, the mayor absolutely must veto this bill!

Pro-Life: Right Policy, Good - and Imperative - Politics

by Rob Schwarzwalder

December 2, 2014

In a post-election article in Politico, James Hohman describes what he terms “fault lines” as the 2016 Republican presidential field emerges. Among the issues he mentions are Common Core, NSA eavesdropping, immigration, Medicaid expansion and gay marriage. Noticeably absent: abortion.

Why? One reason is that advocates of protecting unborn children and their mothers from a predatory abortion industry are winning. According to the Guttmacher Institute (ironically, once the research arm of the country’s largest abortion provider, Planned Parenthood), “In 2013 alone, 22 states enacted 70 antiabortion measures, including pre-viability abortion bans, unwarranted doctor and clinic regulations, limits on the provision of medication abortion and bans on insurance coverage of abortion. However, 2013 was not even the year with the greatest number of new state-level abortion restrictions, as 2011 saw 92 enacted; 43 abortion restrictions were enacted by states in 2012.” Guttmacher also notes that by mid-2014, “13 states (had) adopted 21 new restrictions that could limit access to abortion.”

The implications of these new laws and regulations are profound: As noted by Catholic Family Association president Austin Ruse, “How effective have some of these state legislative efforts been? A few years ago, Texas had 40 abortion clinics. Now, it has less than ten and counting.” Put another way, thousands of unborn children in the Lone Star state will be welcomed into life and their mothers defended against the abortion industry’s exploitation.

Although Barack Obama’s commitment to unrestricted access to abortion-on-demand is almost legendary (infamous, more accurately and sadly), the new Republican House and Senate can still pass pro-life bills that not only will set the stage for victories in a future pro-life Administration but which will remind the GOP rank-and-file that they can rely on those for whom they voted to keep their word. A promise to defend life is especially worth keeping in an era when cynicism about politics and politicians is too well-deserved.

A second reason is that the potential contenders for the GOP presidential nomination two years from now are smart politicians: In the Republican Party, abortion is as settled as a difficult issue ever can be, and those vying for the party’s top electoral slot realize they must commit to defending life or fail in their effort to win the nomination. Last month’s election verified this: Brad Tupi of Human Events observes that “Of those voters who said abortion should be illegal, 73 percent were Republicans and 25 percent were Democrats. These results conform to the stated platform positions of the two major parties.” Tupi rightly comments that “voter turnout was abysmal, about 36 percent. This is the lowest turnout since World War II.” However, it’s also noteworthy that those who turned-out last month compose the core of the GOP’s voters, the men and women who will also vote in the 2016 primaries and whose votes will determine the next Republican presidential ticket.

Overwhelmingly and nationwide, Republican office holders are pro-life. All but a handful of the Republican Members of Congress, both House and Senate, are advocates (actively or at least passively) of the sanctity of life from conception until natural death. And as Dave Andrusko writes in National Right to Life News, last month a “diverse field of Republicans (won) in state legislative races; almost all are pro-life.” That’s why, in a lengthy analysis piece, Politico reporter Paige Winfield Cunningham argues that “the GOP victories in the statehouses and governor’s mansions … are priming the ground for another round of legal restrictions on abortion.” Cunningham predicts “a wave of anti-abortion laws” in the states.

We at the Family Research Council will welcome that wave. For those of us committed to protecting lives within the womb and helping their mothers with their little ones, born and unborn, that wave will be more like a cleansing flood. Let it come.

The Constitution and Executive Orders

by Rob Schwarzwalder

November 20, 2014

Family Research Council does not take a position on immigration reform. We’ve got enough on our plate, from protecting unborn children and their mothers from a predatory abortion industry and sustaining traditional marriage as the foundation of our culture to protecting religious liberty as the “first freedom” of our republic.

However, we take a strong position on the Constitution: We believe in it. We agree with the Founders that a written text contains objective meanings and that, to borrow a phrase from Jefferson, neither an activist judiciary nor an impatient president has a right to turn the Constitution into a “thing of wax.”

That’s why conservatives have every right to be concerned, even alarmed, by the President’s pending announcement of an Executive Order on U.S. immigration policy.

The Constitution invests the President with the authority to enact policies to ensure the faithful execution of laws passed by Congress and signed into law by the Executive (Section 3, Article II), and the “executive power” (or “vesting” power) granted the President (Article II, Section I) universally is recognized by constitutional scholars as involving only execution of federal laws, removing from the Executive Branch those officers who serve at the President’s discretion, and the formation and execution of foreign policy.

Then-Supreme Court Justice Robert Jackson in Youngstown Sheet & Tube Co. v Sawyer (1952) offered a three-fold test for whether an Executive Order is valid:

  • When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”
  • When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility.”
  • When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter … Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”

The operative phrase in the above bullets is in the third paragraph: “measures incompatible with the expressed or implied will of Congress.” Clearly, as National Affairs’ Andrew Evans writes, “President Obama’s executive order is intended as a substitute for a law that Congress has not passed.

Finally, federal Courts have ruled that Executive Orders that surpass the express intent of Congress can only be executed in times of national emergency. Even then, according to the

U.S. Code, “When the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act. Such specification may be made either in the declaration of a national emergency, or by one or more contemporaneous or subsequent Executive orders published in the Federal Register and transmitted to the Congress.

In other words, even in the extreme event of a national emergency, the President has to justify by what authority he is declaring such emergency. And clearly, while both legal and illegal immigration policy involve a host of difficult issues, the Administration has not demonstrated, nor can it demonstrate, that any such emergency exists. If it did, why did the President – as he himself put it – wait a full year for Congress to act?

Legal scholar William J. Olson and Rutgers University historian Alan Woll have rightly noted that “Powers were separated not to make government more efficient but to restrain the natural bent of men, even presidents, to act as tyrants.” Mr. Obama hasn’t gotten what he wants, so he is acting like a monarch unconstrained by legality. This is not constitutional, republican governance. It is something else altogether – something that should evoke in everyone who values his Constitution-based liberty apprehension about what might come next.

Meddling Freedom From Religion Foundation Gets Tossed Out of Court

by Travis Weber

November 14, 2014

Thankfully, the U.S. Court of Appeals for the 7th Circuit, in Freedom from Religion Foundation v. Lew, refused to let stand a decision which had declared the clergy housing tax allowance unconstitutional.

This case began when the Freedom from Religion Foundation (FFRF) sued the U.S. government alleging that the government grants tax benefits based on religion. In a quite ill-advised lower court ruling, U.S. District Judge Barbara Crabb held that the FFRF could properly bring the lawsuit and that the tax allowance violated the Constitution. The case was then appealed to the 7th Circuit.

To understand how ridiculous the FFRF’s claim is, we must understand a little bit about the doctrine of “standing” to bring a lawsuit in federal court.

As the 7th Circuit explained, to bring a lawsuit, a party must show:

(1) they were injured in a concrete and personal way,

(2) that the injury can be fairly traced to the defendant’s action, and

(3) that the injury is likely to be remedied by a favorable judicial decision.

In addition, the court explained, merely being offended at the government’s action does not give one grounds to sue. Obviously, the fact that an atheist group is upset at other religious entities getting some tax relief for their ministers does not “injure” the atheist group at all. There is simply no personal injury present.

The 7th Circuit agreed, noting that the FFRF could not be injured by being denied any such tax exemption because the group never even asked for it.

The court also noted the FFRF’s own difficulty in arguing for liberal standing rules – almost anyone would have standing to sue for virtually any reason! This would result in over-clogged and over-worked federal courts, which, as they sift through heaps of frivolous suits, would have to take time away from truly meritorious suits where parties have been actually injured. To say this would be an injustice is an understatement.

The 7th Circuit concluded as follows:

To summarize, plaintiffs do not have standing to challenge the constitutionality of the parsonage exemption. A person suffers no judicially cognizable injury merely because others receive a tax benefit that is conditioned on allegedly unconstitutional criteria, even if that person is otherwise “similarly situated” to those who do receive the benefit. Only a person that has been denied such a benefit can be deemed to have suffered a cognizable injury. The plaintiffs here have never been denied the parsonage exemption be-cause they have never requested it; therefore, they have suffered no injury.”

Nevertheless, it’s troubling to think the FFRF’s claims could even be considered more seriously had it asked for and been denied the exemption. Such a possibly should serve to highlight the way the suppressors of any religious expression in public life manipulate our legal system in wasteful and unproductive ways.

The FFRF has hardly been “injured” here by any reasonable understanding of that term. Courts should take note of this when the FFRF is back before another judge claiming some other mental or psychological “injury.”

Sketchy Judicial Assignments in Ninth Circuit Marriage Cases

by Chris Gacek

November 14, 2014

The American people are justified in wondering if they are ruled by interlocking ruling bodies that operate in secret, govern with unbridled duplicity, and are immune to correction by the People acting through their representatives or acting directly in referenda. There have been many prominent examples in the last two months. Two involve our imperious judicial oligarchy.

But, first we have the recent reports of repeated statements by Obamacare insider and MIT economist, Jonathan Gruber, calling the American people “stupid” and boasting that Obamacare was foisted on the public through a determined campaign of lying and deviousness. Lies on top of lies on top of lies.

Second, in early October the U.S. Supreme Court appeared to act with stunning cynicism when it dismissed requests for review of marriage-definition cases arising out of several federal appellate courts. The Court had heard an identical case when it reviewed the constitutionality of California’s Proposition 8 less than two years ago. However, the Prop 8 case was dismissed because the plaintiffs, the proponents of Prop 8, were deemed to lack “standing” to sue. This conclusion was reached because California’s Attorney General took a dive in the litigation and refused to defend a ballot-approved amendment to the California constitution. (Prop 8 was supported by a 52% majority in November 2008.)

The October 2014 cases petitions to the Supreme Court checked all the boxes for standing, but the cases were still turned away allowing lower court rulings that struck down male-female marriage to stay in place. It appeared the that Supreme Court was taking the coward’s way out by allowing lower courts to redefine marriage in America without publicly putting forward a majority opinion explaining how the male-female definition of marriage could violate any constitutional principle. This Court, it appeared, didn’t even have the integrity to write its own Roe v. Wade for marriage. On November 6th the U.S. Court of Appeals for the Sixth Circuit supported the traditional marriage definition. Now that there is a split among the circuit courts, the Supreme Court’s stealth imposition strategy won’t work – if that is what they were doing. Now the nation is left with an incoherent stew of constitutional slop consisting of incongruent reasoning and standards. The reputation of the Supreme Court is being badly damaged each day this continues.

Well, if you were to think that the reputation of our black robed masterminds couldn’t get much worse, think again. In October 2014 a panel of the U.S. Court of Appeals for the Ninth Circuit issued a decision striking down the male-female marriage regime established be the voters of Nevada and Idaho. (The court reversed an excellent Nevada opinion that had supported traditional marriage.) In mid-October, a private group in Nevada, the Coalition for Protection of Marriage, filed a petition and a supporting affidavit with supporting statistical analysis with the full Ninth Circuit purporting to demonstrate that the panels in cases on homosexual-related issues were not being assigned randomly. In fact, they claimed that two of the court’s most liberal members (Stephen Reinhardt and Marsha S. Berzon) were greatly overrepresented in such cases. Here is how the Coalition for Protection of Marriage summarized its claim of bias in panel selection:

The attached statistical analysis … explains that since January 1, 2010, Judge Berzon has been on the merits panel in five and Judge Reinhardt has been on the merits panel in four of the eleven Ninth Circuit cases involving the federal constitutional rights of gay men and lesbians (“Relevant Cases”), far more than any other judge and far more than can reasonably be accounted for by a neutral assignment process. Indeed, statistical analysis demonstrates that the improbability of such occurring randomly is not just significant but overwhelming. Thus, the odds are 441-to-1 against what we observe with the Relevant Cases—the two most assigned judges receiving under a neutral assignment process five and four assignments respectively (and anything more extreme). (Petition, 3-4.)

If assessed accurately, this assignment pattern was not random. The case assignment was rigged to help assure the politically desired outcome.

It goes without saying that this is an extremely serious accusation that needs investigation not just by some handpicked Ninth Circuit lackey but by the Chief Justice of the U.S. Supreme Court and by the new Senate Judiciary Committee to be chaired by Senator Grassley.

Elections Deal Another Setback to the “Rainbow Revolution”

by Peter Sprigg

November 14, 2014

On October 30, just five days before the mid-term elections, the McClatchy newspaper chain ran a breathless article under the headline, “Rainbow Revolution: U.S. welcoming gay marriage, changing politics.”

Much of the focus of the article was on changes in attitudes toward homosexuality in the Republican Party. It began with an account of something that it said “would have been unimaginable even a couple years ago.” It told how “[t]he most powerful Republican in Washington,” House Speaker John Boehner, “flew to San Diego … to help raise money for an openly gay candidate for the House of Representatives” (Carl DeMaio). It reported that DeMaio, along with Richard Tisei of Massachusetts, were “[a] pair of openly gay Republicans … running in competitive House races.” According to the article, Boehner’s “decision to campaign for gay candidates was met with surprisingly nominal opposition, which he was able to brush aside quickly.”

The McClatchy article, penned by Anita Kumar, also highlighted Monica Wehby, the (heterosexual) Republican candidate for the Senate in Oregon, who ran a TV ad highlighting her support for redefining marriage, “featuring a gay man who successfully fought the state’s same-sex marriage ban.”

Democrats were not completely ignored, however. The article also cited Maine “where Democrat Mike Michaud could become the first openly gay governor in the nation.” Meanwhile, “In Colorado, Democratic Sen. Mark Udall launched a social media campaign against his Republican opponent for voting against a bill that would protect gays from discrimination.”

Apart from specific candidates, this “first story in an occasional series on the changes in American attitudes about gays and gay marriage” declared, “After decades of solid opposition, a majority of Americans now support marriage between those of the same sex.”

That was the media spin on October 30, 2014.

What a difference five days make.

DeMaio and Tisei, the two homosexual Republican Congressional candidates? Both lost.

Monica Wehby, the Republican Senate candidate who considers someone a hero for helping to overturn a popular vote defining marriage as the union of a man and a woman? She lost.

Democrats Michaud and Udall? They both lost, too.

And that “majority” that supposedly supports same-sex “marriage?” According to nationwide exit polls on Election Day, it was only 48%—exactly the same proportion who continue to oppose such a redefinition (and a decline from the 49-46% plurality which supporters of marriage redefinition had in the 2012 exit polls). This was based on a poll question asking, “Should your state legally recognize same-sex marriage?” Note that polls which correctly frame the issue by asking about the definition of marriage have consistently shown that most American continue to believe that marriage should be defined as the union of one man and one woman. For example, in this 2013 poll, when asked, ““Would you approve or disapprove of changing the definition of the word marriage to also include same-sex couples?” only 39% approved while 56% disapproved.

While the media may view the world through rainbow-colored glasses, and there may be a “rainbow revolution” underway on the subject of marriage in the courts (which, under our constitutional system, are supposed to be the least revolutionary branch of government), it is clear that actual voters—you know, “We, the People,” who are the sovereign rulers of this country—are not so eager to join this “revolution.”

As FRC President Tony Perkins pointed out after the election, the concern about candidates like DeMaio, Tisei, and Wehby “was not these candidates’ sexual orientation, but their policy orientation.” The threat to the family posed by redefining marriage, and the threat to religious liberty posed by the aggressive agenda for the forced affirmation and celebration of homosexuality, are becoming ever clearer, and a candidate’s support for these radical policies is not something that will motivate the Republican base to turn out and support them.

In fact, exit polls showed that opposition to redefining marriage remains widespread—and even dominant in several of the key battleground states which were crucial to the Republican takeover of the Senate. The most complete set of exit poll results that I was able to find in the days after the election was posted online by NBC News, and included data on the marriage question for 24 states.

In Arkansas, Republican Tom Cotton unseated Democratic incumbent Mark Pryor in a state where voters said “No” to same-sex “marriage” by a whopping margin of 69% to 27%. In North Carolina—the most recent state to adopt a marriage amendment, in 2012—Republican Thom Tillis beat Democratic incumbent Kay Hagan in a state which still opposes a revisionist view of marriage by 57% to 39%. In Louisiana, incumbent Democrat Mary Landrieu in probably in trouble in a December runoff against Republican challenger Bill Cassidy (Louisiana is the most pro-marriage state in the NBC exit polls, opposing a redefinition of marriage by 73% to 25%). In West Virginia, Republican Shelley Moore Capito will replace retiring Democratic incumbent Jay Rockefeller (the state’s voters oppose same-sex “marriage” by a 67% to 31% margin).

Meanwhile, Republican incumbents Mitch McConnell, Tim Scott, and Pat Roberts held off Democratic challengers in Kentucky (against same-sex “marriage” 64%-33%); South Carolina (62%-34%); and Kansas (51%-45%). In Georgia, Republican David Perdue held the seat of retiring incumbent Republican Saxby Chambliss (Georgia voters oppose same-sex “marriage” by 62%-34%).

Only one Democratic Senate candidate was victorious in a state where a majority of voters oppose same-sex “marriage”—incumbent Sen. Mark Warner of Virginia, who narrowly edged out establishment Republican Ed Gillespie (the state says “no” to recognizing same-sex “marriage” by 53% to 45%).

So Democrats fared extremely poorly in states that oppose same-sex “marriage.” Yet it is undeniable that the country is sharply divided on this issue. The 24 states with exit poll results on this issue reported on the NBC website included ten with majorities (and two more with pluralities) against recognizing same-sex “marriage,” eleven with majorities in favor of it, and one (Florida) perfectly mirroring the 48% to 48% tie nationwide.

Some have argued that as public opinion gradually shifts toward more people making peace with same-sex “marriage,” the Republican Party will have to abandon its staunch opposition in order to keep up with the times. Did Republicans who oppose same-sex “marriage” struggle at the polls in the states where majorities of voters reportedly support it?

The answer is no. Joni Ernst of Iowa, Dan Sullivan of Alaska, and Cory Gardner of Colorado are all Republicans who were victorious in key battleground states without endorsing same-sex “marriage,” even though its recognition is reportedly supported by voters in Iowa (50% to 42%), Alaska (55% to 41%) and Colorado (62% to 32%). Scott Brown, on the other hand, lost in New Hampshire (where voters support recognition of same-sex “marriage” by the largest margin reported, 70% to 28%)—despite being endorsed by the pro-homosexual Log Cabin Republicans.

Although not tested by the exit polls, my theory is that even as polls seem to show significant support for the redefinition of marriage, that support is very thin, whereas the opposition is much more deep-seated. In other words, far more of those who express opposition to the redefinition of marriage do so out of deep conviction, and are likely to oppose a candidate based on this issue alone. Many of the 40% of Americans who (according to the exit polls) attend religious services at least once a week probably fall into this category.

On the other hand, much of the expressed support for changing the definition of marriage is just a matter of going along with the perceived cultural tide, rather than a deep conviction. (Indeed, with the recent spate of court rulings in favor of redefining marriage across the country, answering “yes” to the question, “Should your state legally recognize same-sex marriage?” may amount to little more than a declaration that their state should obey rulings of the courts—not that such a definition is the ideal public policy).

The percentage of voters who will oppose a candidate only because he or she refuses to endorse marriage redefinition is probably relatively small—mostly, just the 1.6% of American adults who (according to a recent federal survey) self-identify as gay or lesbian.

In summary, the historic 2014 elections for the Senate demonstrate that supporting the redefinition of marriage and the rest of the pro-homosexual agenda is a loser, and opposing it is a winner, across the country—especially for Republican candidates.

So much for the “rainbow revolution.”

[Below are the exit poll results on marriage for all 24 states where they were reported by NBC News, in order of the most to least opposition to redefining marriage:]

Question: “Should your state legally recognize same-sex marriage?”

State Yes No

Louisiana 25% 73%

Arkansas 27 69

West Virginia 31 67

Kentucky 31 67

Georgia 34 62

South Carolina 34 62

North Carolina 39 57

Ohio 41 54

Virginia 44 53

Kansas 45 51

Michigan 45 49

Pennsylvania 47 49

Florida 48 48

[Total U.S. 48 48]

Wisconsin 52 45

Iowa 50 42

Alaska 55 41

Minnesota 58 39

Illinois 58 38

New York 59 36

California 61 35

Colorado 62 32

Oregon 64 32

Maine 66 32

New Hampshire 70 28

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