Category archives: The Courts

When Unborn Children are Considered Victims of Homicide

by Arina Grossu

July 22, 2014

There are a number of disturbing facts about a homicide story coming out of Michigan, not the least the gory acts of violence surrounding the deaths of a man and a pregnant woman. The story leaves a lot of disturbing questions unanswered about the nature of the encounter that resulted in this tragedy.

It is interesting to note that the reporting ABC affiliate recently called it a “triple homicide.” “Why triple?” you may ask. Michigan law (Mich. Comp. Laws Ann. § 750.322) defines the willful killing of an unborn child by any injury to the mother of the child as manslaughter. It is one of 38 statesto have fetal homicide laws. The rights of this unborn child as a person are accepted and defended.

In a previous article, I outlined the logical inconsistency of abortion laws in light of fetal homicide laws. What’s the difference between this unborn child whose life was taken from him and the 3,000 children who die every day because they are aborted? The only difference is not their level of development or any other factor, but rather the consent of the mother.

This dark and senseless act which claimed the lives of three people and the suicide of the perpetrator not only underlines the present culture of death, but the logical inconsistency in not defining the killing of unborn children as homicide in all states and under all circumstances.

Democratic Bill to Override Hobby Lobby Ruling Fails

by Arina Grossu

July 16, 2014

A bill introduced by Sen. Patty Murray (D-WA) and Sen. Mark Udall (D-CO), the “Protect Women’s Health From Corporate Interference Act” to override the U.S. Supreme Court’s recent Hobby Lobby ruling failed to get cloture in the Senate today. The Supreme Court ruled in Hobby Lobby v. Burwell that family business owners do not have to violate their consciences in order to earn a living by providing drugs and services to their employees in their healthcare plan, to which they morally object.

This bill seeks to overturn what the Supreme Court ruled earlier this month, and would force family business owners to provide their employees in their healthcare plan drugs and devices that have the potential to kill an unborn child even if they may have moral objections, and despite the protections afforded to them by the Religious Freedom Restoration Act (RFRA). It failed to get the sixty votes that were needed to move the bill forward, coming up short at 56-43 votes. We are thankful to the Senators who voted against cloture on this bill, thus protecting the religious freedom of all family businesses.

Slandering the Supremes

by Travis Weber

July 3, 2014

Justice Ruth Bader Ginsburg’s dissenting opinion in the Supreme Court’s recent decision in Burwell v. Hobby Lobby is, in my view, clearly erroneous. With my colleagues at Family Research Council, I applaud the majority opinion as fully consistent with the requirements of religious liberty and the needs of women.

So, how does one get away with treating Supreme Court justices in a manner which would get any child reprimanded in elementary school? You couch your insult with humor, and engage on a politically correct topic.

The biggest question surrounding the recent song by Song A Day’s Jonathan Mann putting Justice Ginsburg’s dissent in the Hobby Lobby case to music — and in which he refers to the justices in the majority as “slut-shaming geezers” — is why no one is bothered enough by such slandering and disrespecting of Supreme Court justices to say anything. But it is what it is: Shameful.

What’s the point of these antics? Who knows … . Perhaps it’s because the writer doesn’t care to read what the decision says. Perhaps he thinks it’s more fun to mock its authors. Perhaps he does understand the decision and realizes he can’t attack the reasoning so, in a cowardly move, he attacks the authors’ integrity. Perhaps he does understand the decision but realizes he won’t acquire fame with a reasoned response so he adds incendiary words to his song. Or, perhaps, he knows he will only get people to listen to him if he adds shock value — thus he mocks justices and a decision which actually has inherent meaning he’s not bothering to understand.

There is nothing wrong with putting Justice Ginsburg’s dissent to music. The interaction of the Court with the public, although generally that of a more formal nature, can bear the casual manifestation of a song. In fact, some have shown the ability to tastefully depict the clash of ideas at work in Supreme Court rulings in formats including even opera. But what is harmful to the Court is a cultural attitude that dismisses the Court’s work by mere insults — without any basis in truth or basic comprehension of the legal principles at issue. Jonathan Mann makes his living as an entertainer, an entertainer who touts his ability to take “large amounts of complicated ideas and very quickly [transform] them into a hilarious, hummable and memorable song.” Here, he’s not bothered to even acknowledge the “complicated ideas” under question — he’s simply resorted to name calling. The Court and our country can bear lighthearted whimsy. What they can’t bear are baseless insults like this — insults, moreover, which aren’t even true.

Need we call to mind that the only thing the families behind Hobby Lobby and Conestoga ever objected to was 4 out of 20 methods of birth control they were being forced to provide, on the belief these 4 killed little babies in the womb? Yet according to Jonathan Mann, many “sluts” have been “shamed” when the justices ruled that women still must receive these 4 types of birth control. Wait, what? Yes, the justices ruled women still are to receive all their contraceptives — the government just has to provide them in a way that does not force employers with religious objections to violate their consciences by playing a part in what they view to be evil. Yes, of course, it is very obvious to see that many “sluts” were “shamed” with this ruling … .

Maybe one day if a justice (it would have to be one of the older male justices) was caught outside of the court rebuking a young woman for sleeping around too much — maybe then, he could accurately be called a “slut shaming geezer.” Even then, I’m not sure such antics would be called for. But they are hardly called for when any reading of the opinion does not justify such antagonism.

There are plenty of high court opinions I disagree with, but none over which I would attack the justices’ character. I can’t remember the last time someone mocked a liberal Supreme Court justice in this way. Yet if they did, it would be equally uncalled-for.

In the end, the name-calling (inaccurate at that) is symptomatic of a larger issue — the inability of many Americans to accurately engage on public issues and play a role in our experiment in democracy. As public engagement and living side by side in toleration of different views gives way to name-calling aimed at conformity to what is politically correct, the gears of our nation will grind to a halt. And we will all suffer for it.

Attacks and slander like that of Jonathan Mann may or may not be legal. But it is certainly shameful. People of integrity on all sides of these issues need to call this out when they see it.

We would call upon all, including those opposed to the Court’s ruling in Hobby Lobby, to denounce such baseless attacks. It would be appropriate for Justice Ginsburg to make clear she does not support such sentiments. All Americans, though they reasonably disagree on issues such as the Court faced here, should be united in opposition to Jonathan Mann’s slanderous words.

Hobby Lobby: A clear win for RFRA, and a cautious rebuke of the HHS mandate

by Travis Weber

July 1, 2014

In Burwell v. Hobby Lobby Stores, the Supreme Court held in a 5-4 decision that closely held for-profit corporations can bring claims under the Religious Freedom Restoration Act (“RFRA”), and that the HHS mandate violated these corporations’ rights under RFRA by requiring them to provide contraceptives which they believe end human life. The Court faced two issues: (1) whether for-profit corporations are “persons” for purposes of RFRA protection, and if so, (2) whether the HHS mandate violated RFRA in this case. It decided the first clearly, and the second more cautiously.

RFRA protects corporations

Holding

RFRA protects a “person’s” religious exercise. The question is whether Hobby Lobby and Conestoga are “persons.” The Court held that they are—specifically that closely held for-profit corporations like those in this case clearly fall within the meaning of “person” in RFRA.

Analysis

The Court began by noting the broad protections Congress set in place by passing RFRA, which would indicate that closely held businesses are covered. In addition, the Dictionary Act indicates that for profit corporations are covered by RFRA, and there is no context surrounding RFRA to indicate otherwise (the Court rejected the government’s argument that RFRA merely codified pre-Smith case-law). The government had conceded that a nonprofit corporation can be a person for purposes of RFRA. Thus, there is no logical reason to conclude that for profit corporations are not protected by RFRA simply because they make a profit. As the majority opinion notes: “HHS would put these merchants to a difficult choice: either give up the right to seek judicial protection of their religious liberty or forgo the benefits, available to their competitors, of operating as corporations.” Majority op., at 17. Of course, the government has to recognize that individuals (sole proprietors) can exercise religion even though they make a profit. The government thus argued that these two elements—profit making and corporate form—added together are reason to deny Hobby Lobby and Conestoga RFRA protection. Yet the government ultimately had no sufficient basis for its argument, and the Court squarely rejected the government’s position and held that Hobby Lobby and Conestoga can bring claims under RFRA.

*NOTEResult is limited to closely held corporations: The Court expressly noted its ruling applied to closely-held for profit corporations like those in these cases. The Court did not decide clearly one way or the other whether publicly traded companies and other corporate forms are protected. Those determinations would have to be made in other cases. While this may be viewed as a “narrow” win, the Court regularly does not decide issues which are not before it, and the issue of a publicly traded company’s coverage under RFRA was not before it. Therefore, the Court was simply conducting its analysis as is typical in these cases, and the fact that it so clearly held that the businesses in this case are covered is a strong holding notwithstanding the Court’s statements limiting the holding to closely held companies. The issue of whether companies like Hobby Lobby are covered by RFRA was previously subject to dispute, but now it is settled. This significantly broadens RFRA’s reach.

RFRA claims in this case succeed

Holding

RFRA provides that the government may only substantially burden a person’s exercise of religion when the government’s action or regulation (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. The challengers had claimed that the HHS mandate violates RFRA by burdening their beliefs by requiring them to provide drugs they believe end life, all while not serving a compelling government interest and not being the least restrictive means. The government must make a showing on these elements, or the RFRA claim succeeds. The Court skipped the first question, and easily decided the second against the government because of the existence of less restrictive means. This grants the plaintiffs a win on their RFRA claims, but the Court arrived at its conclusion easily. If the legal trail had been more difficult to blaze, Hobby Lobby would not have been as assured of a win.

Analysis – religious beliefs, their sincerity, and whether they were burdened

Normally a court would determine if the religious beliefs at issue are sincere beliefs (courts never get into whether the exercise is actually in accord with the religion – that would meddle in the internal workings of religion), but the government did not dispute the plaintiffs’ sincerity in this case. Thus the first question for the court is whether there is a substantial burden to the plaintiffs’ exercise of religion. The Court looked at the fines which would be imposed and concluded the HHS mandate imposed a substantial burden, while dismissing the idea that there is no burden because the penalty is conceivably less than providing coverage for employees. The Court also rejected the government’s argument that the religious burden and HHS mandate were too attenuated, noting that the government is not to be in the business of assessing the religious belief, but only determining if it is sincerely held.

Analysis – compelling interest

The Court then assumed that the government may have a compelling interest in providing all the methods of birth control at issue—the Court simply didn’t decide whether there was a compelling government interest in this case. But the Court didn’t ultimately have to decide this issue, because it held that the government did not advance its regulation through the least restrictive means.

Analysis – least restrictive means

The Court continued by stating that even assuming the government has a compelling interest in advancing its HHS mandate, the government has not accomplished this goal through the least restrictive means. The Court rejected the argument that the ACA was akin to a scheme like social security in which it was very important for everyone to participate—the government did not have to compel employers to provide the drugs in order to advance its interests. Here, for instance, the government could directly provide the drugs in order to accomplish its goal through a less restrictive means. The Court also looked at the “accommodation” which has already been provided to other non-profits, and offered that as an example of something the government could have done to provide birth control coverage, while burdening the companies to a lesser degree. Because the government could have done this but did not, the challengers win and the HHS mandate as currently stands violates RFRA.

*NOTEApplication to other scenarios: The Court also said its ruling pertained to contraception and the ACA, and did not necessarily apply to corporate religious objections to other issues like vaccines or taxes. Other considerations on the part of the government, such as controlling the spread of infectious diseases, would affect these determinations in ways different from the considerations pertaining to the HHS mandate. The Court does not give much of an indication on how it would rule on a RFRA claim objecting to a law requiring nondiscrimination on the basis of sexual orientation. It did say religious objections regarding hiring decisions based on race would not succeed, but the race issue is pretty well settled, and such an example does not really help predict how the court would rule on the sexual orientation issue. Many, including the dissent, will decry the majority opinion as sweeping (Justice Kennedy wrote a separate concurrence just to respond to this claim). And yet contrary to this doom and gloom about all manner of religious objections to come, the court recognized RFRA claims would continue to be assessed on a case by case basis as they arise. Majority op., at 46. The “sky is falling” response is not credible in light of the Court’s opinion.

**NOTEEffect on non-profit cases: The Court specifically discussed the “accommodation” as a possible less restrictive means for the government to use, and suggested it would not violate RFRA if used in the instant case—it notes that if the government provided for an “accommodation” similar to that which it provided non-profit entities, the impact on female employees of Hobby Lobby would be zero (thus this satisfies the less restrictive means requirement) Majority op., at 3-4.Justice Alito points out “[t]he principal dissent identifies no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and there is none.” Majority op., at 44. Yet the Court expressly said it was not deciding the “non-profit cases” and would have to decide those separately. In addition, those entities will be treated differently under the law, and involve different legal considerations and claims. It remains an open question whether the “accommodation” violates RFRA in the non-profit challenges, even though it appears such an accommodation would satisfy the Court in Hobby Lobby.

Concurrence

Justice Kennedy concurred in the judgment, and authored a concurrence to respond to the dissent’s characterization of the majority’s holding as very broad and sweeping. (Justice Kennedy appears sensitive enough on that point to want to defend himself).

While the Court skipped over the question of whether a compelling government interest in the HHS mandate exists, Justice Kennedy does seem sensitive about noting he is not deciding that question here: “[i]t is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.” What explains this statement? It is possible that Justice Alito (and maybe one or more of the other justices in the majority) would have been willing to find there is no compelling government interest in the HHS mandate, but Justice Kennedy was unwilling to do so. Yet Justice Kennedy was willing to find the least restrictive means requirement unsatisfied in this case, which is enough to find for the plaintiffs. So the majority avoided the compelling interest question, and Justice Kennedy confirms this point. Reading into the opinion slightly more, the “cautious win” for Hobby Lobby on this point could be due to Justice Kennedy.

On a more positive note, Justice Kennedy appears to support a slightly broader view of freedom of religion, noting that religious exercise includes “the right to express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community.” He obviously agrees that the Greens and Hahns can exercise religion in the face of contrary arguments from the government that non-profits exercise religion while for-profits do not: “RFRA is inconsistent with the insistence of an agency such as HHS on distinguishing between different religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of them the same accommodation.” Justice Kennedy also cited Justice Kagan’s dissent from the Town of Greece in a statement supporting the diversity of religious exercise in the United States today—while this is good to see, it must be remembered that Justice Kennedy is considering this case easily decided because the existing “accommodation” is a clearly identifiable less restrictive means to advance the HHS mandate. Cases with other issues may not have easily identifiable less restrictive means. In addition, Justice Kennedy will also likely approach cases involving other rights differently.

Dissents

Justice Ginsburg authored the primary dissent, and was joined by Justice Sotomayor in deciding that the companies were not covered by RFRA, and by Justices Sotomayor, Breyer, and Kagan in deciding that the companies’ claims would fail anyway because they are not substantially burdened, the government has a compelling interest, and has satisfied the least restrictive means requirement. Justices Breyer and Kagan wrote a separate but short dissent in which they specifically stated they would not decide whether “for-profit corporations or their owners” may bring RFRA claims, perhaps recognizing the difficulty of the government’s argument on this point. Akin to the way the majority skipped the question of compelling interest and still ruled for the challengers, Justices Breyer and Kagan skipped the question of corporate coverage and held that even if the companies were covered by RFRA, their claims against the HHS mandate would fail. Therefore, notably, there are still seven members of the Court who recognize (through either affirmatively deciding or explicitly refusing to decide the question) the idea that you do not give up religious liberty when you engage in profit making activity.

Take away and future implications

This is a win. However, it is a narrow win. The ruling clearly applies to other closely held for profit entities objecting on RFRA grounds to any drugs required by the HHS mandate. It’s likely to apply to most of the potential fines for noncompliance, though Hobby Lobby’s may be larger than others’ fines. As long as the sincerity of the religious objection is not disputed, and the fines are relatively large, other cases featuring for profit businesses bringing RFRA claims will likely be decided along the same grounds as this opinion.

It is less clear as each of these aspects changes. If the company is another type, the result becomes less clear. If the objection is to a practice in which the government has an easier time showing a compelling interest, like tax collection, the challenge becomes more difficult. The Court offered the example of eradicating racial discrimination as a compelling government interest. We do not know what it will do with sexual orientation discrimination. The dissent did, however, offer Elane Photography as hypothetical future claim which the Court will have to decide. We can assume the four dissenting justices would have a problem with Elane Photography’s claim. Nothing else in the opinion provided a clue about how it would be decided, however.

What is going on with this ruling?

Why do the justices break down in the opinions as they do? This decision is ultimately about suppressing the exercise of religion in favor of a government scheme. This is why the government tried to force for profits to pay in this case. And this is why the accommodation is unsatisfactory for the Administration. Four justices ultimately see the ACA and HHS mandate as so important and such an advance of “rights” that they will subject these businesses to it. Justice Ginsburg uses dismissive language and asks whether RFRA would allow claims “of this ilk” just after mentioning Elane Photography and other cases regarding Christian views on sexuality—which shows an animus on her part toward Christian views associated with traditional values. She also says “[o]ne can only wonder why” the Court ignores (in her view) the reasoning underlying Title VII exemptions (limiting religious activity to nonprofit “religious corporations”) in its understanding of this case. This sharply worded question implies that the majority is deciding these cases according to the justices’ religious beliefs. She and the other liberal justices are likely to be increasingly aware and responsive to this perception. For many years the liberal justices were the ones siding with the free exercise claimant challenging government action. Now the conservative justices are. Admittedly, I think this case would be a closer call for some of the justices if they were deciding individuals’ RFRA claims (as opposed to those of corporations). But we do not have the benefit of that analysis.

Proper framing of this opinion:

Let us not forget that today’s ruling featured a showdown between individual religious liberty rights (constitutional rights, as embodied in RFRA) and an overly intrusive government scheme. Americans’ objections to such schemes, and the ability to seek judicial redress for their objections, lie at the core of American constitutional and civil rights jurisprudence. Americans’ consciences must not be sacrificed on the altar of legislative (or agency) action merely because they also happen to want to make a profit.

Whether corporations engaged in social responsibility initiatives, voluntary community initiatives, or religious practices, corporations have always done much more than just “make a profit.” Whether the case features a Jewish butcher, a Muslim financier, or the Green family’s decision to see their religious beliefs reflected in their business practices, corporations have always served to reflect the beliefs of the human beings behind them. The Court’s ruling today simply recognizes this principle.

In the middle of its opinion, the Court rhetorically asks: “Is there any reason to think that the Congress that enacted such sweeping protection put small-business owners to the choice that HHS sug­gests? Majority op., at 17. No, there is not. America has been built on the backs of small-business owning families like the Greens and the Hahns. Many of them are merely seeking to live free from government intrusion in accord with their beliefs without being forced to violate their consciences. That is not too much to ask. Thankfully the Court agreed.

Burwell v. Hobby Lobby: The Good, the Bad, and the Ugly.

by James Wheeler

June 30, 2014

The decision of the Supreme Court today in the Hobby Lobby case protects the religious liberties of the closely held for-profit corporations objecting to providing abortifacient contraceptives. However, there is much else in the decision to be concerned about for future religious liberty challenges. There are also things in some of the opinions that ought to be downright frightening to religious liberty advocates.

First, there are several aspects of the decision that are good. The Court recognized that corporations are protected by the Religious Freedom Restoration Act (RFRA). Limited for now to closely held corporations, the Court embraced the important fact that corporations exist to further the interests of their constituents, such as shareholders and officers. If for-profit corporations could not exercise religion, religious individuals would be faced with a nigh impossible “Hobson’s choice” of maintaining their religious rights and forgoing the significant advantages of the corporate form, or incorporating and giving up their religious rights.

As importantly, the Court refused to accept the government’s attempt to re-characterize and minimize the Hahn’s and Green’s religious objection. The government sought to characterize the objection as only relating to the use of abortifacient contraceptives directly, ignoring completely the religious nature of their objection to complicity in providing access to the contraceptives at issues. The Court wisely refused to accept that re-characterization, stating that it was not the Court’s job to evaluate the validity of the individual’s belief.

Those two things are rightfully a cause for celebration, but the Court’s decision leaves much else to be desired. The first thing that should cause religious liberty advocates to be concerned is the Court’s treatment of the compelling interest test. Although the majority opinion, written by Justice Alito, expressed skepticism of the idea that providing contraception coverage was a compelling state interest in the face of all the other exception, Justice Alito expressly declined to rule on that question. He assumed for the purposes of the rest of the decision that the government had a compelling interest in providing universal contraceptive coverage. That is not necessarily a problem, the Court often assumes issues without deciding them if the case can be decided on other grounds. However, what is clear from Justice Kennedy’s concurrence is the reason they assumed that answer without deciding it: Justice Kennedy believes it is compelling government interest and therefore would not have joined the majority if they had decided against the government on that question.

Justice Kennedy’s concurrence provides another cause for concern. Because he necessarily provides the fifth vote in a 5-4 decision like this, his opinion, limiting the majority’s holding, controls. Unfortunately, he bases the decision that the contraceptive mandate is not the required “least restrictive means” on the availability of the accommodation provided to religious non-profits. That is, he decided that the government’s decision to allow religious non-profits to be exempt from coverage but force the insurance company to provide the abortifacient contraceptives was sufficient for for-profit corporations as well. This foreshadows a defeat in the case by some of those religious non-profits challenging the requirement that they be complicit in arranging the alternative coverage. Even though the 11th Circuit just sustained one such challenge based on today’s ruling, it appears likely the Supreme Court will not have a majority for upholding that decision. Although the majority of the Court expressly declined to decide that question, the Kennedy’s concurrence makes it unlikely he will join with the four others in today’s majority to rule in favor of those entities in a later decision.

Justice Ginsburg’s dissent provides what is the ugliest (and most frightening) part of today’s decision. Although she was in dissent, her manifest contempt for you and I should concern us. She dismisses as “ilk” those who believe in Biblical sexual morals and lumps them in with racists. Unfortunately, the majority, in dismissing her concerns, leaves the door open to holding the government can rightfully make Biblical sexual morals illegal in the workplace. Although the majority, rightfully, responds to Justice Ginsburg’s criticism by stating today’s decision does not threaten laws prohibiting racial discrimination, the majority doesn’t defend the right of individual’s to conduct their business in accord with Biblical sexual morals.

Although today’s decision is rightfully a cause to celebrate, it also leaves a lot to be desired for protecting religious liberty in the public square.

Supreme Court Delivers Momentous Religious Freedom Victory

by FRC Media Office

June 30, 2014

WASHINGTON, D.C.- Family Research Council (FRC) praised today’s ruling by the U.S. Supreme Court upholding religious liberty and protecting the conscience rights of family businesses who object to being forced to pay for the coverage of sterilizations, contraception and drugs that have the potential to destroy an unborn child.

FRC President Tony Perkins learned of the ruling this morning as he met with the Hahn family, founders and owners of Conestoga Wood Specialties, which were represented by Alliance Defending Freedom attorneys in this lawsuit challenging the Obama administration mandate.

Perkins made the following comments:

The Supreme Court has delivered one of the most significant victories for religious freedom in our generation. We are thankful the Supreme Court agreed that the government went too far by mandating that family businesses owners must violate their consciences under threat of crippling fines.

All Americans can be thankful that the Court reaffirmed that freedom of conscience is a long-held American tradition and that the government cannot impose a law on American men and women that forces them to violate their beliefs in order to hold a job, own a business, or purchase health insurance.

The unfair HHS mandate gave family businesses two non-choices: either violate your deeply held moral beliefs and comply by paying for drugs and services to which you object, or pay crippling fines of up to $100 per day, per employee, for non-compliance. This mandate threatened the jobs, livelihood and healthcare of millions of Americans and forced those who stood up for their conscience, like Hobby Lobby and Conestoga Wood, to either comply or be punished.

Thankfully, the threat the HHS mandate imposed on Americans has been deemed unlawful today as a violation of core religious freedom rights. While we celebrate this landmark decision, it is our hope that lower courts will follow the Supreme Court’s lead and protect non-profits like Little Sisters of the Poor, Priests for Life, and Wheaton College from the unfair HHS Mandate,” concluded Perkins.

Press Release: Courts Will Not Have Final Say on Marriage

by FRC Media Office

June 25, 2014

WASHINGTON, D.C.- Family Research Council (FRC) President Tony Perkins released the following statement in response to two rulings today - one being a two-to-one ruling from a 10th Circuit Court of Appeals panel striking down Utah’s marriage amendment and another one from a federal judge striking down Indiana’s Defense of Marriage Act:

While disturbing, today’s rulings come as no surprise given the rising disdain for the rule of law promoted by the Obama administration. These latest rulings are not just about redefining marriage but they are a further attempt by the courts to untether our public policies from the democratic process, as well as the anthropological record.

While judges can, by judicial fiat, declare same-sex ‘marriage’ legal, they will never be able to make it right.  The courts, for all their power, can’t overturn natural law. What they can do is incite a movement of indignant Americans, who are tired of seeing the foundations of a free and just society destroyed by a handful of black-robed tyrants. The Left has long believed packing the federal courts with liberal jurists is the means of fulfilling a radical social agenda, as the American people refuse to endorse that agenda at the polls or through their elected representatives.

As we saw with Roe v. Wade in 1973 - despite the Left’s earnest hopes, the courts do not have the final say. The American people will have the final word as they experience the consequences of marriage redefinition and the ways in which it fundamentally alters America’s moral, cultural and political landscape,” concluded Perkins.

What Judge McShane thinks he knows — but is false

by Peter Sprigg

May 21, 2014

Federal judges seem to have entered into an echo chamber of political correctness in their recent rulings in support of the homosexual redefinition of marriage. They ignore or deny obvious truths (like the importance of procreation to the natural definition of marriage), while dogmatically asserting as true things which are either blatantly false or inherently unknowable.

The May 19, 2014 decision by U. S. District Court Judge Michael J. McShane (Geiger v. Kitzhaber), striking down Oregon’s constitutional amendment defining marriage as the union of one man and one woman, was yet another example. I will not bother going through his decision point by point to refute it, since it varies little from the similar decisions handed down by other judges in recent months. Those interested in why these judges have it wrong should refer to the recent FRC paper, Marriage on Trial: State Laws Defining Marriage as the Union of One Man and One Woman Are Valid under the Constitution of the United States.

In the case of the Geiger decision, I would just like to point out Judge McShane’s maddening sense of certainty in asserting things which are either a) blatantly false, or b) inherently unknowable.

In the former category (blatantly false) is virtually everything McShane says about the research on children raised by homosexual parents. The judge first notes that under Oregon law, the “relationship between child and parents is the same regardless of parents’ marital status,” and regardless of how the child was conceived.

Oregon’s policies accept that children fare the same whether raised by opposite-gender or same-gender couples,” McShane then declares.

He cites a judge in Michigan who declared that “there is simply no scientific basis to conclude that children raised in same-sex households fare worse than those raised in heterosexual households.” He cites the decision of Judge Vaughn Walker (who, like McShane, is himself homosexual) in the California Proposition 8 case, saying, “Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful, and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology.”

McShane concludes, “The realization that same-gender couples make just as good parents as opposite-gender couples is supported by more than just common sense; it is also supported by ‘the vast majority of scientific studies’ examining the issue.”

It is hardly “common sense” to conclude that there is no advantage whatsoever to a child being raised by the man and woman who united to create it, nor to assert that homosexual couples constitute the lone exception to the overwhelmingly body of evidence that children do best when raised by their own biological mother and father who are committed to each other in a life-long marriage.

It may be true that the numerical count of “studies” purporting to support homosexual parenting is larger than the count of those questioning it; but this lack of “serious debate” is not because of the weight of scientific evidence, but because violating the ideological dictates of the pro-homosexual academy is likely to destroy a scholar’s career.

A summary of the older (pre-2004) evidence on children of homosexual parents can be found online in the FRC book, Getting It Straight. A more recent landmark was the 2012 publication of data from the New Family Structures Study of sociologist Mark Regnerus, which “show rather clearly that children raised by gay or lesbian parents on average are at a significant disadvantage when compared to children raised by the intact family of their married, biological mother and father.”

Almost as important, if not more so, was the article by Loren Marks in the same issue of Social Science Research, in which he pointed out the serious methodological weaknesses of the pro-homosexual parenting studies that are usually cited, saying, ““[N]ot one of the 59 studies referenced  … compares a large, random, representative sample of lesbian or gay parents and their children with a large, random, representative sample of married parents and their children.”

FRC previously published an overview of these studies, as well as a more detailed summary of the findings of the New Family Structures Study. (Homosexual activists are fond of referring to the Regnerus study as “discredited,” but this is simply untrue. Regnerus was completely exonerated of charges of academic misconduct by his employer, the University of Texas; and while an “internal audit” commissioned by Social Science Research was highly critical, the journal did not withdraw the paper.)

The Regnerus study does not stand alone in raising concerns about children of homosexual parents. Since it was published, there have been at least two other major studies using large sample sizes which have found similar deficits for such children on specific outcomes. One using U. S. Census data found, “Primary schoolchildren in married heterosexual households are 35 percent more likely to make typical school progress than peers in same-sex households.” Another based on the Canadian census reported “that the children of gay and lesbian couples are only about 65 percent as likely to have graduated from high school as the children of married, opposite-sex couples.”

While Judge McShane devoted a page to claims about what “the vast majority of scientific studies” say about homosexual parents, perhaps he was actually driven more by his own experience. McShane, an Obama appointee who has only been on the federal bench for a year, is openly homosexual and “is raising a child in a same-sex relationship,” according to USA Today.

Although making no comment about his partner, McShane did write about his son:

Even today I am reminded of the legacy that we have bequeathed today’s generation when my son looks dismissively at the sweater I bought him for Christmas and, with a roll of his eyes, says “dad … that is so gay.”

Will he declare eye-rolling to be unconstitutional next?

FRC Files Amicus Brief in Michigan Same-Sex Marriage Case

by Chris Gacek

May 15, 2014

There seem to be more legal challenges to state laws proclaiming natural marriage than there are stars in the sky. One of these, DeBoer v. Snyder, arises out of Michigan. In DeBoer, a federal district court declared Michigan’s natural marriage definition to be unconstitutional.  The decision was appealed by Michigan to the U.S. Court of Appeals for the Sixth Circuit, and the Family Research Council has filed a friend of the court brief in this appeal.  The brief was written by Paul Linton, a highly regarded constitutional appellate attorney, who submitted the brief on FRC’s behalf last week on May 9th.

The amicus brief focuses on two general arguments.  First, it maintains that the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution does not create a fundamental right to marry a person of the same sex. Second, Michigan’s definition of marriage is reasonably related several legitimate state interests, most notably, its promotion of responsible procreation. Thus, Michigan marriage law satisfies the “rational-basis” review required by constitutional equal protection analysis.  For these reasons, the district court’s decision should be reversed.

Satire upon Satire upon Galloway

by Travis Weber

May 7, 2014

At the New Yorker, satirist Andy Borowitz provided his comments on the Town of Greece v. Galloway case. At first, I thought he was satirizing the dissent and its idea that the public square could be “religious free.” Then I caught myself and realized he was satirizing the majority opinion. Borowitz writes:

In what legal experts are calling a landmark decision, on Monday the United States Supreme Court struck down what many believe to be the main reason the country was started.

By a five-to-four vote, the Court eliminated what grade-school children have traditionally been taught was one of the key rationales for founding the United States in the first place.

The separation of church and state has been a cornerstone of American democracy for over two hundred years,” said Justice Samuel Alito, writing for the majority. “Getting rid of it was long overdue.”

Calling the decision “historic,” Justice Antonin Scalia was guarded in predicting what the Court might accomplish next.

Last year, we gutted the Voting Rights Act, and today we did the First Amendment,” he said. “We’ll just have to see what’s left.”

The reason for my initial (mistaken) impression in identifying the target of his satire, however, is that it SO eloquently describes Justice Kagan’s dissent in Galloway. Borowitz could have written (about the main dissent):

In what legal experts are calling a landmark decision, on Monday the United States Supreme Court struck down what many believe to be the main reason the country was started—[religious freedom].”

By a five-to-four vote, the Court eliminated what grade-school children have traditionally been taught was one of the key rationales for founding the United States in the first place—[freedom from government interference with their religious practices].”

The separation of church and state [Religious freedom] has been a cornerstone of American democracy for over two hundred years,” said Justice [Elena Kagan] Samuel Alito, writing for the majority. “Getting rid of it was long overdue.”

Calling the decision “historic,” Justice [Stephen Breyer] Antonin Scalia was guarded in predicting what the Court might accomplish next.

Last year, we gutted the [Defense of Marriage Act] Voting Rights Act, and today we did the First Amendment,” he said. “We’ll just have to see what’s left.”

[People have had the ability to pray according to their conscience for far too long,” Kagan continued. “It’s about time religious freedom is sidelined so the government can once again edit prayers for nonsectarian compliance, in accord with the proud Establishment traditions of the Old World].”

Borowitz might be disheartened (or perhaps heartened) to know his satire is actually (unwittingly) poking fun at the liberty-opposing dissent in Galloway. Nevertheless, it does. Indeed, it was Justice Kagan and her fellow dissenters who would have the government in the business of editing prayers for compliance with nonsectarian principles established by the government. Such government interference with religion was the very tyranny the Founders fled from. It was unconstitutional then, and is equally unconstitutional today.

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