Judiciary Archives

ObamaCare Hits the 11th Circuit Court of Appeals

The initial questions and observations of the judges don’t sound good for the prospect of ObamaCare, but that’s by no means an indicator of how they’ll vote. One analyst I heard said that this ruling, whatever it is, may wind up being the law of the land. If the case goes to the Supreme Court, Justice Kagan will, or should, recuse herself, as she was instrumental in crafting the legal defense of ObamaCare itself. If that happens, the court could very possibly wind up in a 4-4 tie, leaving the 11th Circuit Court ruling to stand. Stay tuned.

On The Radio

I sometimes cross-post items from this blog to my diary on RedState.com, one of the top conservative web sites. Occasionally, the editors find a diary entry that they like and promote it to the front page. They did this to my post about the Christian family in the UK that was denied the chance to do foster parenting because of their beliefs. This, of course, gives it much wider readership, and I wound up getting an e-mail from Melody Scalley who does a weekly conservative radio show on WESR in Virginia. She wanted to interview me about the article, and so this afternoon we had a 5-10 minute talk on the phone, which she’ll be running on her show tomorrow night.

I don’t see any way to get streaming audio or a podcast, so I’ll see if I can come up with the segment from somewhere. But if you just happen to be on the Virginia peninsula near Onley, tune in tomorrow to 1330 AM or 103.3 FM between 6 and 8pm.

Citing Your Values to Overturn Your Values

That’s precisely what a court in the UK has done. They’ve cited the values that the country was founded on — Judeo-Christian ones — to rule against holding to those values.

There is no place in British law for Christian beliefs, despite this country’s long history of religious observance and the traditions of the established Church, two High Court judges said on Monday.

Lord Justice Munby and Mr Justice Beatson made the remarks when ruling on the case of a Christian couple who were told that they could not be foster carers because of their view that homosexuality is wrong.

The judges underlined that, in the case of fostering arrangements at least, the right of homosexuals to equality “should take precedence” over the right of Christians to manifest their beliefs and moral values.

In a ruling with potentially wide-ranging implications, the judges said Britain was a “largely secular”, multi-cultural country in which the laws of the realm “do not include Christianity”.

Is Britain’s government "largely secular"? Yes, it is, as are all Western democracies. Our own founding fathers in the US did not set up a theocracy. But this by no means suggests that the government should take no position that happens to coincide with a religious view. Laws in our country against murder, theft and extortion are rooted in Christian morality; the Biblical ideas of the intrinsic value of each human being, and the values of justice and fairness. Further, we have death penalties, when we do have them, for only the worst offenders, and for the same reasons.

While other countries may have similar laws, this is more than a law issue. Our culture itself was shaped by these same Judeo-Christian values. I’ll make the obligatory disclaimer that it has been implemented by fallible human beings, and it’s not always been in a manner consistent with itself. Still, this foundation has produced the freest, wealthiest, healthiest and, yes, most tolerant countries in history. Millions of immigrants and refugees are trying to get into Western democracies all the time because of the results of holding to those values.

In fact, the judges unwittingly note this foundation in their ruling.

“Although historically this country is part of the Christian West, and although it has an established church which is Christian, there have been enormous changes in the social and religious life of our country over the last century,” they said.

It was a “paradox” that society has become simultaneously both increasingly secular and increasingly diverse in religious affiliation, they said.

“We sit as secular judges serving a multicultural community of many faiths. We are sworn (we quote the judicial oath) to ‘do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will’.”

The irony is clear. These judges are citing an oath, that has been proscribed by the government influenced by the Judeo-Christian culture, to rule against people exercising their Judeo-Christian beliefs. You won’t find an oath like this in countries where you can be persecuted for believing the "wrong" religion. This value of fairness to all, regardless of who they are, is thanks to, for the most part, the Biblical beliefs of the Johns family, the ones trying to become foster parents.

Is it, therefore, "fair" to only allow people with the right beliefs and religious affiliation, approved by the government, to become foster parents? Will the court make the same ruling for Muslims and Jews who feel the same way? Apparently, society’s shifting standards win out over a basic, fundamental right of freedom of religion.

However, when fostering regulations were taken into account, “the equality provisions concerning sexual orientation should take precedence” over religious rights, they said.

And thus, the more homosexuals, or any group with a protected status, can convince governments that they must have special rights to override basic human rights, the more the foundation is chipped away; the very foundation that made this society what it is today, with our without an established Church. 

Some Anglican church officials say essentially the same thing.

Speaking personally, Canon Dr Chris Sugden, the executive secretary of Anglican Mainstream, said the judges were wrong to say religion was a matter of private individuals’ beliefs.

“They are treating religion like Richard Dawkins does, as if Christian faith was on a parallel with Melanesian frog worship,” he said.

“The judgment asserts that there is no hierarchy of rights, but itself implies there is one in which the right to practise one’s religion is subordinated to the secular assumptions about equality.”

Gays use to say that they didn’t want special rights, just equal rights. This is another example of special rights that cut to the very core of the free societies they live in. This is a huge step in the wrong direction.

Friday Link Wrap-up

Unrest in the Arab world. Autocrats killing their own people. Hezbollah working with Mexican drug cartels. And what’s the UN most concerned about? Israel. Right. Meryl Yourish has more.

Speaking of which, the Saudis tried to "stimulate" their economy in hopes of avoiding the same unrest plaguing other Arab nations. Doesn’t look like the citizens will be bought off that easily. (Pity that ours are so easily bought off.)

The inverted morals of the Left; killing babies is OK, but circumcising them once their born should be against the law. Even if you’re Jewish.

Worried about an oligarchy where the rich and powerful pay to have laws favorable to them? Then never mind the Koch brothers, it’s labor unions you should be worried about. (But the Left won’t worry about them, because they’re the right kind of money and power.)

The headline reads, "Gaza militants fire missile at Be’er Sheva for first time since Gaza war". Technically correct, but Qasams fall there virtually daily, but you wouldn’t know from our news media.

The Left is still pushing the meme that "right wing ‘hate’ groups" and their uncivil rhetoric caused the shooting of Rep. Gabrielle Giffords.

Civility Watch: The uncivil discourse has not been just in Wisconsin. Nazi imagery and racial slurs have been used in protests around the country, most recently in Massachusetts, Washington, DC, and Colorado. And while fully documented, none were mentioned by the media. Think it may have something to do with the fact that the protests were all for liberal causes?

In order to find that the ObamaCare individual mandate is constitutional, a judge had to somehow equate action with inaction. The result was never in doubt, it’s just how to get there that is the issue for these liberal judges.

CNN’s Candy Crowley put on her rose-tinted glassed once Obama was elected. I mean people were burning Bush in effigy for the previous 8 years, and now people love us. Donald Rumsfeld disagrees, and Lori Ziganto has evidence to the contrary.

It’s official: The State Department supports expelling Libya from the UN Human Right Council. Where in the world were these guys when Libya was put on the UNHRC? Back in May, we just called the HRC "flawed", which may be last year’s biggest understatement. In fact, it’s the whole UN that is flawed.

And finally, oh, that liberal media. A comparison of Tea Party protest coverage, and union protest coverage. Love that independent, unbiased media.

"Judicial Activism"

James Taranto gives us a good history of the term "judicial activism" and its varied uses over the decades, especially with regards to the latest charges of "judicial activism" against judges who consider ObamaCare unconstitutional. Worth a read.

ObamaCare Ruled Unconstitutional

It’s just the latest ruling, and other courts have agreed and disagreed, but the lawsuit of 26 states against it has had a major ruling in its favor.

The ruling favors of the 26 state attorney generals challenging the law. The judge ruled the individual mandate that requires all Americans to purchase health insurance invalid and, according to the decision, "because the individual mandate is unconstitutional and not severable, the entire Act must be declared void."

When inanimate objects are blamed

In light of the recent Tucson mass shooting, and the negligent discharge shooting (as it now appears) at a high school in the Los Angeles area, the usual cries are voiced regarding gun control. Over the past 15 years, however, it seems that gun control lobbies have lost more battles then they’ve won. Lately, an interesting, if not entirely expected tactic they’ve taken, is that of placing their crosshairs on the purchasing of ammunition. After all, so the thinking must go, if one does not have any ammunition then one’s firearm suddenly becomes nothing more than a club.

Last year, California gun-control advocates introduced, and passed AB962, which would have forced citizens who desired to purchase “handgun” ammunition to conduct the transaction in a face-to-face setting, providing photo-ID, residence address, and a thumbprint (i.e., registering themselves and their actions with the state). Signed by then Governor/Terminator Arnold Schwarzennegger, the bill was touted as promoting our own safety. From the governor,

Although I have previously vetoed legislation similar to this measure, local governments have demonstrated that requiring ammunition vendors to keep records on ammunition sales improves public safety. These records have allowed law enforcement to arrest and prosecute persons who have no business possessing firearms and ammunition: gang members, violent parolees, second and third strikers, and even people previously serving time in state prison for murder.

Such thinking must surely have been inspired by the fact that so many gang-bangers get their handgun ammunition at places like Walmart or through on-line vendors (/sarcasm).

AB962 was set to go into effect in a few weeks.

Word has come in, this morning, that AB962 has been successfully appealed in court. From an NRA news announcement,

The lawsuit—funded by the National Rifle Association and the California Rifle and Pistol (CRPA) Foundation as part of a joint Legal Action Project—was prompted in part by the many objections and questions raised by confused police, ammunition purchasers, and sellers about what ammunition is covered by the new law.

Many of the nation’s largest mail-order and online ammunition retailers had already announced that they would soon end sales to California residents. If the law had gone into effect, it would have required that “handgun ammunition” be stored out of the reach of customers, that ammunition vendors collect ammunition sales registration information and thumbprints from purchasers, and that vendors conduct transactions face to face for all deliveries and transfers of “handgun ammunition.”

AB962 was just another in a string of laws which do nothing more than restrict the actions of law-abiding citizens. Let’s hope that continued resistance to a Nanny-State mentality will help set the tone for the real hope and change our country needs.

Friday Link Wrap-up

What Charlie Rangel did:

To summarize briefly, we have blatant and recurring Federal and State tax fraud, illegal use of four rent-controlled apartments in New York City, using his Congressional letterhead to illegally solicit funds for his private foundation from lobbyists for companies he was writing tax regs on, outrageous conflict of interest, failure to declare over $600,000 in income..the sort of stuff that would get you or I locked up for a long time.

What punishment he got:

Charlie Rangel’s penalty? He’ll be required to stand in the well before his colleagues in the House while a censure resolution is read, which will then become part of the Congressional Record. That’s it. Boo-freaking hoo.And he will stay in Congress.

Love that accountability.

Remember the movie "Erin Brockovich", telling of one woman’s crusade to get justice for the people of Hinckley, California from the eeevil corporation, Pacific Gas & Electric, for releasing a toxic plume of hexavalent chromium 6.  PG&E was sued for (what was going to be) a huge spike in cancer for the people.  No real scientific proof was offered, but this result was clearly going to happen.  Yeah, well, it didn’t.  Turned out John Stossel was right.  Again.  And Erin is back in Hinckley, pursuing the same thing.

Chuck Collins, senior scholar at the Institute for Policy Studies and writing for they Sojourners blog, decides that the moral measure of a tax plan. 

"Does it further concentrate wealth and power in the hands of a few? Or does it disperse concentrated wealth and power, and strengthen possibilities for a democratic society with greater equality, improved health and well-being, shared prosperity, and ecological sustainability?"

By this measure, it sounds like the "rich" should never have their taxes decreased.  Ever.  OK, so what’s his limit on that moral measure?  How much money should the "rich" be allowed to keep?  Can we just get that number out, so we know what the standard is?

Wonder what the Hollywood Left’s supporters of Hugo Chavez will think of his upcoming dictatorial powers?  Eh, probably sweep it under the rug.

Liu Xiaobo, newest recipient of the Nobel Peace Prize, also endorses the invasions of Iraq and Afghanistan, praised George W. Bush, and is strongly on Israel’s side in the Middle East conflict.  Just sayin’.

Post-natal abortions are all the rage.  Oh, please don’t be surprised.  It’s just the natural result of the culture of death mindset.

Death panels are getting ready to meet.  Really. 

Friday Link Wrap-up (Catch-up Edition)

More links this week since I didn’t get around to it last week.

What’s keeping this recession going for so long?  Ask James Madison. Yes, that James Madison.

The 6th Circuit judge that upheld the health care reform individual mandate to buy insurance has really redefined terms in order to make his ruling.

With that reasoning, Judge Steeh thoroughly unmoors the commerce clause from its concern with actual economic activity that Congress can regulate to a more amorphous realm of “economic decisions” which apparently include the decision to NOT enter into commerce at all.

A better example of an activist judge you’re not likely to find soon.

Roger Ebert, in reviewing “Waiting for Superman”, acknowledges that the private school highlighted does better than public school, proclaiming “Our schools do not work”.  His solution?  (Wait for it…)  More money for public schools, for the ones that don’t work instead of encouraging what does work and at typically a lower cost per student.  Liberal education policies are now just talking points rather than reasoned arguments.

Remembering a sociopathic mass murderer, who is extolled by liberal students T-shirts everywhere.  (No, not Charles Manson. I’m talking about Che Guevara.)

The Rise of the (Conservative, Christian) Woman in American politics.

Juan Williams responds to the NPR sacking.  Ah, the tolerant Left in action.

And to close it out, two cartoons to make up for missing a week.  I just love Chuck Asay.  (Click for larger versions.)

Friday Link Wrap-up

Leave it to Newsweek to call family films "shameful" for not fulfilling their PC feminist quotas.  With so much that is actually shameful coming out of Hollywood, you’d think they’d have more to deal with than "Finding Nemo".

Robert Robb of The Arizona Republic asks:

What will it take for economic policymakers to understand that the chief problem today is uncertainty? And that until they quit moving significant pieces of fiscal, monetary and regulatory policy around, the uncertainty won’t abate?

Quite a lot, apparently.  If jobs start getting created after big Republican wins in November, it’ll likely be because the "Party of No" will be there to curb this uncertainty.

If 91% of white voters had voted against Obama, some would have called it partially due to racism.  If 91% of black support him, can that be partially attributed to racism?  Jerome Hudson considers this.

The New York Times trumpets how well the civilian court system is for dealing with terrorism it when a terrorist pleads guilty and is sentenced.  Um, that’s not a real test of the system, guys.  A trial is the way to test it, and a terrorist trial going on in the civilian system was dealt a huge blow.  Do we want to chance, perhaps, Khalid Sheikh Mohammed getting off on a technicality?

Glasses that give perfect vision for any type of eyesight, even if you need bifocals?  Looks possible!

And finally, the longest stretch of 9.5+ percent unemployment since the 1930s has not been mitigated one bit by the two highest deficits since 1945.  Given liberal claims, we ought to have been sailing out of this by now.  Can we finally put that "government spending fixes the economy" meme to bed?

Friday Link Wrap-up

Media Bias Dept.:  The Left got upset when Rupert Murdoch gave money to right-wing groups.  No mention, of course of the 88% of TV network donations go to Democrats.  And how much coverage did you hear about the BBC’s Director General admitting that the state-run news organization has had a “massive” left-wing bias?  Yeah, me neither.  Also, Patterico explains how the media has shaped the national discussion by selective coverage.

Market Watch:  The market is doing more for troubled homeowners than the government it.  CNN is, apparently, shocked to discover such a thing can happen.

“Recovery” Summer Dept.:  Germany’s recover has been fueled to a large extent by private sector consumption and growth, as opposed to the graph I posted earlier showing most of our jobs went to the government.  And irony of ironies, a French bureaucrat had to tell the US about cutting spending spurs growth.  Why can our own guys understand that?

ObamaCare Dept.:  After helping pass the health care bill, one Democratic Senator, using language he helped craft in the bill, is trying to use it to exempt his state from the individual mandate.  “Yeah, it’s a great idea … for everyone else but me.”  Also, reality is putting the lie to the promise that nothing was going to change for you if you like the health care you have.

Film Corner:  The trailer us up for “Blood Money”, an expose of the abortion industry.

Government (In)action Dept.:  The Justice Department is refusing to enforce voter fraud laws, and they’ve plainly said as much.  So one lawyer is using a provision of the law to file the lawsuits the Obama’s Justice won’t.  Our President respects the rule of law insofar as it furthers his own agenda.  No good can come of that.

Gossip Column:  Fidel Castro himself admits that the communist economic model doesn’t work.  It “works” only insofar as you get influxes of cash from, say, a beneficiary either internally (the “rich”) or externally (the USSR).  But on its own, it is an abject failure.  Would that the Left would hear this and stop trying to move us closer to it.

And finally, the last word on the “Ground Zero Mosque” and the burning of Korans, from Rick McKee.  (Click for a larger image.)

Is "World Vision" a Christian Organization?

World Vision is a humanitarian organization based on Christian values and, as part of their stated goal, they aim "to follow our Lord and Savior Jesus Christ in working with the poor and oppressed to promote human transformation, seek justice and bear witness to the good news of the Kingdom of God."  Its founder was an evangelical pastor who wanted to help orphans and other needy children.  Its articles of incorporation include doctrinal statements.

Is World Vision a church?  No, they don’t claim to be, and neither are they directly affiliated with any church or denomination.

So then; can World Vision claim the religious exemption to employee discrimination laws?  Can they require their employees to also be Christian and to represent the organization’s doctrinal stance?

That’s the question that came up before a 3-judge panel of the Ninth Circuit Court, and they release a ruling yesterday in the case Spencer v. World Vision that says that, yes, they qualify for the religious exemption.  It was a 2-to-1 decision, and the dissenter seems to think that in order to be religious you have to have worship services or, at least, Bible study or preaching. 

Eugene Volokh does a yeoman’s work distilling the ruling down to 5 points.  It’s worth a look.  The 77-page full opinion is, well, optional. 

We were one vote away from suddenly having religious organizations that don’t hold services legally considered secular and losing their right to hire folks of the same beliefs.  In today’s judicial climate, I just hope we can hang on to it.

Crime Is Down; That’s a Good Thing, Right?

Graeme Wood, writing in The Atlantic:

[E]ven as crime has fallen, the sentences served by criminals have grown, thanks in large part to mandatory minimums and draconian three-strikes rules—politically popular measures that have shown little deterrent effect but have left the prison system overflowing with inmates.

So, we’ve been incarcerating more criminals, sentences are longer, and hence crime has fallen.  That’s a good thing, right?

Not according to Wood, who’s article starts with this sentence:

Incarceration in America is a failure by almost any measure.

OK, so, um, I’m confused.  What measure other than the crime rate is a better measure?

Scalia the Prophet

James Taranto notes that Supreme Court Justice Antonin Scalia basically predicted the ruling against Prop 8 in California.  Judge Walker, in this decision, cited, among other things, Lawrence v. Texas which struck down state laws criminalizing consensual sodomy.  "It’s just personal behavior", was the argument from those trying to get those laws overturned.  The Supreme Court justices themselves, who wrote the opinion in Lawrence successfully overturning the state laws, said that the Lawrence case "does not involve" the issue of same-sex marriage.

Scalia essentially called that disingenuous in his dissent.

Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution"? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.

Same-sex marriage is not the first step on some slippery slope.  It is, for some, the destination; the result of supposedly innocuous rulings that have come previously which laid a foundation that backers, including liberals on the Supreme Court, claimed had nothing to do with same-sex marriage. 

This is how they remake society; by lying to you until such time as they’ve built up enough steam, by whatever means necessary, to force through what they ultimately want.  This destination has been predicted for some time; Scalia’s prediction came in 1986.  He (nor I) could believe that the liberals on the bench were that stupid as to not know what they were doing.  It was, and is today, not so much about the law as it is about the politics for them. 

Also, Scalia’s prediction was not "fear mongering"; it was an honest conclusion drawn based on an understanding of the law and its ramifications.  Neither it is "fear mongering" to suggest that this destination is itself not final, but simply a stopping point on the way to who knows where else.  One simply has to look at history, even just recent history, to know that.  After same-sex marriage, the Netherlands began giving civil unions to unions of 3 or more in 2005.  And in 2004:

Tucker Carlson, host of CNN’s "Crossfire", debated with Human Rights Campaign President Cheryl Jacques on the polygamy issue. Carlson asked her why shouldn’t polygamists be able to marry and all she could say was, "I don’t approve of that."

Jacque was pushing for same-sex marriage, but figured it would all just stop in its tracks right there, because she didn’t approve of it.  I’ve got news for you:  jokes about "boogetymen", trying to ignore this history and the considered opinions of law scholars much smarter than they or I, display an ignorance and dismissiveness that belie a facade of thoughtful consideration.

In 1986, few people who argued against sodomy laws thought that it was any more than a privacy matter.  They were naive and/or misguided.  Those who think today that the debate over what is marriage will be done once we have same-sex marriage are equally naive and misguided.  But they will have less of a reason to claim, down the line, that they couldn’t have had an idea what would come of it.  Willful blindness will be the only explanation.

Scalia was right.  Remember that.

Friday Link Wrap-Up

They check immigration status at traffic stops.  This can only be referring to those racists in … Rhode Island.  Do you think we’re likely to see a lawsuit from the Justice Department there?  Yea, me neither.  In fact, it’s already been upheld by the First Circuit Court of Appeals when a private citizen sued.  Yet the government is going after Arizona for this.  Can’t have anything to do with who each state voted for in the last election, right?

A federal district court judge in Boston today struck down the 1996 federal law that defines marriage as a union exclusively between a man and a woman.”  I’ve read portions of the ruling, and I can actually see the judge’s point.  However, I think the 10th Amendment’s “equal protection” clause is being misused a bit to now refer to things like health benefits, which doesn’t really strike me as “protection” from a government’s viewpoint.  And Jack Balkin, a supporter of same-sex marriage incidentally, wonders (among other things) if liberals really want to go down this path with the 10th Amendment.  “As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.”

The “biggest revolution in the NHS [Britain’s National Health System] for 60 years” is … giving doctors responsibility for overseeing patient care!  Yes folks, it took 60 years of socialized medicine for them to realize that.  Do you want to lose those 60 years of common sense here?

Much of the media is saying that the report that was commissioned by the Climate Research Unit of the University of East Anglia to investigate the ClimateGate document dump exonerated the Climate Research Unit of the University of East Anglia.  Except there’s the issue of the biggest thing critics have been harping on; the “hide the decline” suggestion that inconvenient data has been reworked to be consistent with the conclusion already drawn.  Buried in the report is this gem:

On the allegation that the references in a specific e-mail to a “trick” and to “hide the decline” in respect of a 1999 WMO report figure show evidence of intent to paint a misleading picture, we find that, given its subsequent iconic significance (not least the use of a similar figure in the IPCC Third Assessment Report), the figure supplied for the WMO Report was Misleading.

Terry Miller explains:

The researchers were not trying to hide evidence of a decline in global temperatures over the last decade—we have plenty of actual thermometer readings to show temperatures in recent years. What they were trying to hide was the discrepancy between actual temperature readings and the temperatures suggested by tree ring data. They have relied on tree ring data to show that the earth was cooler in the past. If the tree ring data is not reliable (as the discrepancy in recent years would suggest), then maybe the earth was actually hotter in the past than these researchers would have us believe—and perhaps the hot temperatures of recent years do not represent unprecedented global warming but just natural variation in climate.

So the big issue that critics latched on to is, indeed, still a big issue.

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