"Depends What the Meaning of 'Judicial Activism' Is"

An interesting article (link) By the way, this article contains links to other articles you may wish to read.

Here is another classic article, STRICT CONSTRUCTIONISM AND THE STRIKE ZONE, by Prof. Doug Linder.

Con Law Book Recommendation

Constitutional Law--National Power and Federalism: Examples and Explanations (Examples & Explanations Series) (Third Edition 2004)

Here is a link to Amazon.

It seems like it got mixed reviews on Amazon, but I like this book a lot. It is the one I recommended to my son when he took Con Law at Minnesota a few years ago. It provides nice summaries of doctrine with some good hypos for analysis. Just a good supplement to your casebook reading.

McCardle Discussion

I really enjoyed today's class discussion. I know large classes are not always conducive to discussion, but please feel free to speak up and debate these important issues about the meaning of our rights and liberties.

I made a few additions to my blog post (immediately below) on McCardle and the Pledge hypo to highlight some of the questions that arose in class today.

Feel free to post comments and to continue the discussion and debate on line.

Diversity and Tolerance For Me, But Not For Thee

The August 18, 2007 issue of World Magazine has a very interesting article about a recent study of religious bias among college professors. Here is the article:


Tenured bigots
Back-to-school: It is a statistical reality that most faculty members don’t like evangelicals, and they aren't ashamed to admit it Mark Bergin
David French has known for years that college campuses are bastions of anti-evangelical bias. He knew it when he served on the admissions committee at Cornell Law School and watched his colleagues ridicule evangelical applicants as "Bible thumpers" or members of the "God squad." He knew it during his tenure with an education watchdog organization that routinely challenged university speech codes bent on silencing evangelical viewpoints. He knew it when he shifted into his current role as director of the Alliance Defense Fund's Center for Academic Freedom, a position from which he's filed numerous lawsuits on behalf of victimized evangelical students.
But only now can French declare with certainty that his anecdotal observations accurately represent a widespread statistical reality. In a recently released scientific survey of 1,269 faculty members across 712 different colleges and universities, 53 percent of respondents admitted to harboring unfavorable feelings toward evangelicals.
"The results were incredibly unsurprising but at the same time vitally important," French told WORLD. "For a long time, the academic freedom movement in this country has presented the academy with story after story of outrageous abuse, and the academy has steadfastly refused to admit that the sky is blue—that it has an overwhelming ideological bias that manifests itself in concrete ways. This is another brick in the wall of proving that there's a real problem."
Unlike much of the previous foundation for that proof, this brick hails from a non-evangelical source. Gary A. Tobin, president of the Institute for Jewish and Community Research, set out to gauge levels of academic anti-Semitism compared to hostility toward other religious groups. He found that only 3 percent of college faculty holds unfavorable views toward Jews. In fact, no religious group draws anywhere near the scorn of evangelicals, Mormons placing a distant second with a 33 percent unfavorable outcome.
Tobin was shocked. And his amazement only escalated upon hearing reaction to his results from the academy's top brass. Rather than deny the accuracy of Tobin's findings or question his methodology, academy leaders attempted to rationalize their bias. "The prejudice is so deep that faculty do not have any problem justifying it. They tried to dismiss it and said they had a good reason for it," Tobin told WORLD. "I don't think that if I'd uncovered bigotry or social dissonance about Latinos, women, blacks, or Jews, they would have had that same response."
Cary Nelson, president of the American Association of University Professors (AAUP), told The Washington Post that the poll merely reflects "a political and cultural resistance, not a form of religious bias." In other words, the college faculty members dislike evangelicals not for their faith but the practical outworking of that faith, which makes it OK.
Other prominent voices from the academy have suggested that the anti-evangelical bias does not likely translate into acts of classroom discrimination. Tobin intends to test that claim with a subsequent survey of 3,500 students in the coming academic year. "My guess: You can't have this much smoke without some fire," he said.
French can readily testify to that. Before the Alliance Defense Fund filed a federal lawsuit last year, Georgia Tech University maintained speech codes forbidding any student or campus group from making comments on homosexuality that someone might subjectively deem offensive. What's more, students serving as resident advisors were required to undergo diversity training in which moral positions against homosexual behavior were vilified and compared to justifying slavery with the Bible.
In another landmark case at Missouri State University, junior Emily Brooker objected to an assignment in which students were asked to write their state legislators and urge support for adoptions by same-sex couples. The evangelical social-work major was promptly hauled before a faculty panel and charged with maintaining an insufficient commitment to diversity. The panel grilled Brooker on her religious views without her parents present, convicted her of discrimination against gays, and informed her that to graduate she needed to lessen the gap between her own values and the values of the social-work profession.
The Alliance Defense Fund sued Missouri State on Brooker's behalf, pressuring the university into dropping the discrimination charges and paying for Brooker to attend graduate school. An independent investigation into the incident found such widespread intellectual bullying throughout the university's school of social work that investigators recommended shutting the program down and replacing the entire faculty.
Earlier this year, the Missouri House of Representatives passed the Emily Brooker Intellectual Diversity Act, a bill now pending Senate approval that would mandate efforts from the state's public colleges to prevent "viewpoint discrimination." The AAUP has written the state Senate urging that it not pass "such dangerous and unnecessary legislation" because "there is no evidence that a widespread problem exists."
But Robert Shibley, vice president of the Foundation for Individual Rights in Education (FIRE), told WORLD his organization can hardly keep up with intellectual intolerance and free-speech infringements against evangelical and conservative groups. "College campuses overall are not living up to the ideal of having a marketplace of ideas, of having true intellectual diversity to go along with racial and religious diversity," he said. "In too many cases we see groups—evangelical Christians and conservatives, primarily—face sanctions or punishments that are more severe than those of groups with other viewpoints. Or they're punished for things that other groups wouldn't be punished for at all."
French says the continued advancement of evangelicals to high places within academia is critical to effecting change. During his stint on the Cornell Law School admissions board, the longtime lawyer and evangelical stuck up for at least one highly qualified applicant whose previous work as a part-time pastor nearly generated a rejection letter.
"I said, 'Wait a minute. My own religious background makes this poor guy look like a heathen, and I'm on this committee. I think we should give him another look,'" French recalls. "I actually had people, to their credit, come up and apologize to me afterwards for adopting an unthinking stance towards this student. Having a living, breathing, in-the-flesh Christian with ideas and thoughts and whom people could occasionally respect made a difference."
That's multiculturalism at its best.


Any thoughts?

"Michigan federal district court upheld the inclusion of churches in a local government's grant program for brick-and-mortar projects"

From Religion Clause blog:

In an important Establishment Clause decision yesterday-- apparently a case of first impression-- a Michigan federal district court upheld the inclusion of churches in a local government's grant program for brick-and-mortar projects. American Atheists, Inc. v. City of Detroit Dowtown Development Authority, (ED MI, Aug. 8, 2007), involved a challenge to a Facade Improvement Plan (FIP) designed to enhance the appearance of a portion of the city of Detroit in anticipation of the 2005 Major League Baseball All-Star Game and the 2006 NFL SuperBowl. Under the program, approved applicants could receive up to 50% of the cost of improvements to building facades and parking lots-- with specified upper limits on reimbursements. Among the projects funded were nine by churches.

Focusing particularly on the Supreme Court's 2000 decision in Mitchell v. Helms, the court held the fact that churches are pervasively sectarian institutions does not automatically disqualify them from participating in an otherwise permissible aid program. It also held the fact that funds are granted directly to churches does not invalidate the FIP so long as the program does not discriminate on the basis of religious sect and so long as the reimbursements do not amount to government endorsement of a church's message. The grants are not forbidden just because they may free up funds for religious purposes that the churches would otherwise have used for building repairs.

Applying these criteria, the court upheld grants for most of the church repair projects, but found that aid to three projects was unconstitutional because it would be perceived as government support for the advancement of religion. The prohibited projects were repair of two stained glass windows displaying religious images and projects involving monolithic signs that "identify and solicit the churches as sites of Christian worship".

The decision is covered today by the Detroit News and in an Alliance Defense Fund release yesterday.

Diversity Schmiversity

The downside of diversity:A Harvard political scientist finds that diversity hurts civic life. What happens when a liberal scholar unearths an inconvenient truth? Here is an excerpt from the Boston Globe article:

IT HAS BECOME increasingly popular to speak of racial and ethnic diversity as a civic strength. From multicultural festivals to pronouncements from political leaders, the message is the same: our differences make us stronger.

But a massive new study, based on detailed interviews of nearly 30,000 people across America, has concluded just the opposite. Harvard political scientist Robert Putnam -- famous for "Bowling Alone," his 2000 book on declining civic engagement -- has found that the greater the diversity in a community, the fewer people vote and the less they volunteer, the less they give to charity and work on community projects. In the most diverse communities, neighbors trust one another about half as much as they do in the most homogenous settings. The study, the largest ever on civic engagement in America, found that virtually all measures of civic health are lower in more diverse settings.

"The extent of the effect is shocking," says Scott Page, a University of Michigan political scientist.

"The Only Supreme Court Editorial You Need To Read"

I was searching the archives of this blog, when I found this oldie you might enjoy.

Over at the Volokh Conspiracy, Orin Kerr has this very efficient and very funny model editorial complete with fill-in-the-blanks for liberals and conservatives to use:

The Only Supreme Court Editorial You Need to Read:

Lots of editorials and opinion pieces are being penned about the future of the Supreme Court these days, and it occurs to me that all of this writing is terribly inefficient. We could condense most of the different editorials and opinion pieces into a single essay, with one caveat: you just need to insert the proper words depending on whether the authors are liberal or conservative. Here is that single essay, with the bracketed sections containing the word or phrase to insert for liberal authors followed after the slash by the word or phrase to insert for conservative authors.

The Future of the Supreme Court
July 7, 2005
The Washington [Post/Times]

The retirement of Sandra Day O'Connor presents a major opportunity for President George W. Bush. It is essential to our Nation that he choose her replacement wisely.

Although nominated by Ronald Reagan, Justice O'Connor turned out to be surprisingly [enlightened/unprincipled]. Her jurisprudence was [pragmatic/random], which tended to frustrate [conservative wingnuts/believers in a written Constitution]. While Justices Scalia and Thomas voted to [turn back the clock/ follow the Constitution], Justice O'Connor frequently voted in a way that was quite [reasonable/result-oriented].

News reports speculate that President Bush may nominate Attorney General Alberto Gonzales, Jr. to replace Justice O'Connor. If so, it will be a major [relief/disappointment]. While Gonzales has a proven record of loyalty to the President, he does not appear to be a [nut/conservative]. He [may not/ may] vote the right way in many cases, but [he is as good a nominee as we're likely to get/ I doubt it].

Other individuals often named as possible nominees to replace Justice O'Connor are much [worse/better]. Nominating an [extreme/actual] conservative like J. Michael Luttig would signal to all Americans that the Constitution is [on life support/back].

The conservative base has made its position loud and clear: it wants Bush to nominate a strong conservative to the Supreme Court. He should [ignore/listen to] them. The stakes are too high to do otherwise. The fate of our Constitution, and our Nation, hangs in the balance.

Analyzing "Slippery Slope" Arguments

From Volokh Blog:

Slippery Slopes in 10 Pages:

Ward Farnsworth's The Legal Analyst includes a chapter on slippery slopes that's generally based on my Mechanisms of the
Slippery Slope article.

As is usually the case with Ward's work, it's extremely well written, and I can't imagine a better 10 pages on the subject. If you don't want to read my whole law review article (and who really wants to read whole law review articles?), read Ward's
10 pages instead -- many thanks to Ward and his publisher for letting me put the chapter on my site -- or, better yet, read his
whole book.

I have heard good things about this book and I strongly recommend you read the linked excerpt on "slippery slopes" an issue that often arises in Constitutional Law (an EC version is "If we allow Nativity displays, we take a step on the slippery slope toward theocracy").

Nebraska "Judge orders prison to meet religious diet needs"

From the National Paper of Record:

Tecumseh State Correctional Institution officials and a Muslim inmate are attempting to revise food service at the prison so the inmate can have access to kosher foods.

U.S. District Judge Joseph F. Bataillon ordered the revision after the inmate, Mohamed El-Tabech, sued corrections officials under the U.S. Constitution and the Religious Land Use and Institutional Persons Act.

The 2000 act prohibits governments from imposing a substantial burden on inmates’ religious practices without a “compelling governmental interest” and unless the burden is the least restrictive to achieve that interest.

El-Tabech said in the 2004 lawsuit that prison officials were violating his rights under the Constitution and the act by denying him access to a kosher diet and interfering with his prayer schedule. El-Tabech, 49, also claimed he needed to shower daily in keeping with beliefs he based on the Quran. He is currently permitted three or four showers a week.

Bataillon held a non-jury trial on the lawsuit was in
Omaha in May.

Attorneys for the state argued El-Tabech’s diet requests would
increase the costs of food and food preparation, and might create a perception of favoritism among other inmates. In addition, the state said that El-Tabech’s food request, if granted by the judge, could trigger an increase in religious
diet requests from other inmates.

Bataillon said in an order last month that the state failed to offer any evidence about the economic consequences of providing
inmates kosher meals or kosher items at the canteen.

The Nebraska Department of Correctional Services does not provide a kosher food option for any inmates at present, the judge said in the order.

Prisoners can abstain from eating religiously prohibited foods and still maintain a nutritionally adequate diet, and they can order items through the canteen, although, Bataillon wrote, “It is not possible to know what foods are kosher before ordering.”

The judge also noted that the defendants are already furnishing prisoners kosher meals at Ramadan “without incident or impact.”

“According to evidence already adduced at trial, ready alternatives already exist to satisfy El-Tabech’s dietary requirements at a (minimal) cost to the prison,” he wrote.

Bataillon gave the state and El-Tabech 60 days from July 17 to decide on the feasibility of modifying the canteen list to indicate kosher items and offering El-Tabech or any other inmates prepackaged kosher meals.

In addition, the judge ordered the parties to consider offering
inmates kosher foods — boiled eggs, uncut or unpeeled fruits and vegetables, for
example — that are already available in the kitchen.

Bataillon rejected El-Tabech’s request for daily showers, writing that the sink in his cell was a “reasonable alternative” on non-shower days.

The judge ordered that El-Tabech’s prayer schedule be posted so that guards can modify activities to reduce disturbances to El-Tabech’s prayer. Bataillon said he did not expect the Tecumseh to alter prison schedules to accommodate El-Tabech’s prayers, however.

Attorneys for El-Tabech could not be reached for comment Thursday.

Holley Hatt, a spokeswoman for Attorney General Jon Bruning, said she expected the prison to meet the judge’s deadline.

El-Tabech, formerly of Lincoln, began serving a life sentence in 1985 for the murder of his wife, Lynn El-Tabech.

Knino Knows

Justice Scalia on judicial hegemony. Link.

Here is an excerpt:

U.S. Supreme Court Justice Antonin Scalia railed against the era of the "judge-moralist," saying judges are no better qualified than "Joe Sixpack" to decide moral questions such as abortion and gay marriage.

"Anyone who thinks the country's most prominent lawyers reflect the views of the people needs a reality check," he said during a speech to New England School of Law students and faculty at a Law Day banquet on Wednesday night.

The 70-year-old justice said the public, through elected Legislatures -- not the courts -- should decide watershed questions such as the legality of abortion.

Scalia decried his own court's recent overturning of a state anti-sodomy law, joking that he personally believes "sexual orgies eliminate tension and ought to be encouraged," but said a panel of judges is not inherently qualified to determine the morality of such behavior.

He pointed to the granting of voting rights to women in 1920 through a constitutional amendment as the proper way for a democracy to fundamentally change its laws.

"Judicial hegemony" has replaced the public's right to decide important moral questions, he said. Instead, he said, politics has been injected in large doses to the process of nominating and confirming federal judges.

I think Scalia has this about right. Despite the Court's complaint about the majority imposing its morality through laws enacted in the democratic process, the Justices are indeed imposing their moral views when they decide cases like Roe and Lawrence. There is no reason to think that a body of unelected lawyers has a better functioning moral compass than the People who are supposed to rule in a free society.

I also appreciate Scalia's willingness to speak up at a time when some of his colleagues on the Court are, like Archie Bunker, trying to stifle criticism of the Court and judicial activism in the name of "judicial independence." Wasn't it Franklin who said what makes America special is "here the People rule"?

I can't help it! Here is another excerpt:

"He said code words such as "mainstream" and "moderate" are now used to describe liberal judicial nominees.

"What is a moderate interpretation of (the Constitution)? Halfway between what it says and halfway between what you want it to say?" he said."

"Make Sure That There Is Nothing in the Religious Upbringing or Teaching That the Minor Child Is Exposed to That Can Be Considered Homophobic":

Here is a post at the Volokh blog that deals with whether a parent's religious views about homosexuality can be taken into account in a custody decision.

Any thoughts?

Interesting EC Standing Case

From the Religion Clause blog. Here is the report:

By a vote of 8-7, the U.S. Fifth Circuit Court of Appeals yesterday,
sitting en banc, held that plaintiffs lacked standing to challenge Tangipahoa
Parish School Board's practice of opening its meetings with a prayer. In Doe v. Tangipahoa Parish School Board, (5th Cir., July 25, 2007), the majority, in an opinion by Chief Judge Edith Jones, said that there was no evidence in the record that plaintiffs ever attended a school board meeting where a prayer like those challenged was recited.

In a "special concurrence", Judge Moss was unusually critical of the
Supreme Court. He wrote:

The Supreme Court cannot continue to speak out of
both sides of its mouth if it intends to provide real guidance to federal courts.... [I]t cannot continue to hold expressly that the injury in fact
requirement is no different for Establishment Clause cases, while it implicitly assumes standing in cases where the alleged injury, in a non-Establishment Clause case, would not get the plaintiff into the courthouse. This double standard must be corrected because ... it opens the courts' doors to a group of plaintiffs who have no complaint other than they dislike any government reference to God.

Dissenters, in two separate opinions, argued that the trial court's
pre-trial order makes clear that plaintiffs' attendance at board meetings was not a contested issue and that defendants impliedly admitted those facts. 2theadvocate reports on the decision. The splintered 3-judge panel decision in the case was discussed in a previous posting.

Harry Potter and the Half-Crazed Bureaucracy

From my other class blog, Hooray Property.

Obviously, this is not an assignment, just some fun.

"No Religious Liberty Please, We're French"

French Move To Reinforce Secular State

Here is the report:

A panel appointed by the French government has produced a charter that aims to keep public institutions, including hospitals, the armed forces, schools and government offices, free from religious influence.

The document comes in the wake of an assault on a doctor by a young Muslim who objected to his wife being examined by a man when she developed complications after childbirth.

The High Council on Integration is recommending to Prime Minister Dominique de Villepin that rules protecting the nation’s secular society be even more strictly enforced. The Council is recommending that France recognise a proposed charter that would clearly indicate how church and state should be kept separate in such public spaces. The proposed charter on secular life attempts “to define the rights and obligations of public servants as well as those of users of such
government-provided services”.Plans to draw the line on what is considered unacceptable behaviour in hospitals – behaviour that put patients at risk – were first raised three years ago during the debate over Muslim head scarves. The then-Prime Minister Jean-Pierre Raffarin said that hospitals would be the next target.

Male doctors, particularly in maternity wards, say they are increasingly subject to insults and physical attacks. These are perpetrated mostly by men opposed to nudity or physical contact with their wives and daughters. The conviction last week of Fouhad BenMoussa highlighted the issue. He had attacked
Dr Jean-Francois Oury, the head of the maternity ward of Robert Debre Hospital in Paris after the doctor manually examined his wife, who had hemorrhaged after giving birth.

“In my religion, a man doesn’t touch a woman,” Ben Moussa screamed, as he slapped and pulled the doctor, according to the testimony. In court, Ben Moussa then claimed his real motivation was modesty, not religion. He was sentenced to a six-month jail term which can be served in part at home.

“I think the Oury case was the straw that broke the camel’s back,” said Emile Darai, secretary general of the National Congress of French Gynecologists and Obstetricians. The group, unusually, issued a statement in October asking, “Do gynecologists and obstetricians now need police protection to practice?

”The statement affirmed that male and female doctors would treat patients “whatever their sex,” and that a woman has the freedom “to determine contraception, abortion, sterilisation without the permission of her husband.

”The recommendation affirms the rights of patients, but stresses the need for a “balanced approach.” The report said there was no need to legislate on the issue, but highlighted that respect for the functioning of the hospital was vital. It suggested a charter laying out the constitutionally guaranteed principle of secularism be adopted and that pertinent sections be put on display at the relevant institutions.

The charter will remind government-agency employees that while the “freedom of conscience is guaranteed” while they’re on the job, the “constitutional principle of secularism requires [of all citizens] the obligation of [maintaining] strict neutrality” and “equal treatment of all individuals” and the “respect of the freedom of conscience” of others. In other words, no religious proselytising at work, even in subtle ways.

The proposed charter adds that, when a public servant “manifests” his or her “religious convictions during the carrying-out of his or her functions,” in effect that employee’s behaviour “constitutes a dereliction of his or her obligations."

Similarly, the text of the proposed charter also reminds those who use
government agencies’ services that they “must abstain from all forms of proselytising” if or when they avail themselves of such services.

The proposed charter advises members of the public to be cooperative when public servants need to verify a person’s identity. The clear implication of this is that anyone who has their head or face covered will have to uncover if identification is required. The charter would also be distributed at key events, including ceremonies where immigrants are granted French citizenship.

In an editorial, Le Monde says that it is useful to reaffirm the basic
principles of the republican agreement that all French citizens are supposed to share in, which establishes their secular way of life. But “to be obliged to codify some of the rules of communal life in society that should come naturally in a document that comes from the state [itself] – even if it is not a law – reveals the limits of integration policies in a country that [has become] more and more multicultural.

”The fact that the High Council on Integration’s proposed charter has
emerged at all, Le Monde concludes, suggests “a failure of ‘living together,’ a sort of civic fracture that a charter, however useful, will not be enough to diminish."

Hat tip Religion Clause blog

School Race Cases

From How Appealing:

"And finally, "SCOTUSblog" reports that "Chief announces schools cases. Decided jointly. Plans reversed. 5-4, Kennedy concurs in judgment." Denniston's post on the decision is titled "Court strikes down school integration plans." Therein, he writes that "Chief Justice John G. Roberts, Jr., wrote the majority opinion in the combined cases. Justice Anthony M. Kennedy did not join all of the majority opinion, but joined in the result." In early news coverage, The Associated Press reports that "Supreme Court Rejects School Race Plans." You can access the decision in Parents Involved in Community Schools v. Seattle School District, No. 05-908, decided together with Meredith v. Jefferson County Bd. of Ed., No. 05-915, at this link."

Hein and Morse

From How Appealing:

"The second opinion in an argued case issued in Hein v. Freedom From Religion Foundation, Inc., No. 06-157. You can access the opinion here and the oral argument transcript here. Justice Alito announced the judgment of the Court on behalf of a three-Justice plurality. Justice Antonin Scalia issued an opinion concurring in the judgment, in which Justice Clarence Thomas joined. The remaining four Justices dissented in an opinion by Justice David H. Souter.

....

The fourth opinion in an argued case issued in Morse v. Frederick, No. 06-278. You can access the opinion here and the oral argument transcript here. The Chief Justice delivered the opinion of the Court."

Will the Real Jane Roe Please Stand Up

The New York Daily News has an article written by the real Jane Roe, Norma McCorvey, the woman who was the acrtual plaintiff in Roe v. Wade." Here is an excerpt:

As the plaintiff in that infamous Supreme Court case Roe vs. Wade, my life has been inextricably tied to the abortion issue. I once told a reporter, "This issue is the only thing I live for. I live, eat, breathe, think everything about abortion."

Thirty-four years later, I am 100% pro-life.

The Supreme Court's recent decision to uphold the federal ban on partial-birth abortion is the first step in overturning Roe vs. Wade. Banning the procedure - an act of infanticide where a scissors is jammed into the base of the infant's skull, a tube inserted and its brain sucked out - is a sign the court has finally come to its senses.

The case of Roe vs. Wade (I took the pseudonym of Jane Roe to protect my identity) took three years to reach the United States Supreme Court, so I never had the abortion. In fact, I have given birth to three children, all of whom were placed for adoption.

The core of the landmark Roe vs. Wade decision is that abortions are permissible for any reason a woman chooses, up until the "point at which the fetus becomes 'viable,' that is, potentially able to live outside the mother's womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks."

It might bother some that the story of my actual conversion does not mimic the intellectual engagement of Augustine's "take and read," Pascal's wager or C.S. Lewis' famous motorcycle ride. My disposition is somewhat simple.

I became very close to the young daughter of a friend who had considered abortion and I realized that "my law" (as I once fondly referred to Roe vs. Wade) could have snuffed out the life of this amazing little girl whom I had grown quite fond of. That, to me, was unacceptable.

If you are interested in McCorvey's personal journey concerning the abortion issue, you can read the rest if her piece here.

May City Government Require a Fire Fighter to March in a "Gay Pride" Parade?

Update: According to news reports, the Fire Chief has apologized and agreed to launch an internal investigation of the fire fighters complaint. I doubt if the city will ever again compel a fire fighter to march in a controversial parade.

This reminds me that sometimes even a weak case can be won outside of court when the facts of the litigation are published in local (or national) media. If the facts are embarrassing and outrageous, government officials are often anxious to make amends in order to make you and your complaint go away.

Dean Willborn questions the ethics of filing a frivolous lawsuit merely to embarass the governmental defendant. The key words there are "frivolous" and "merely." No?

By the way, here is a link to the complaint filed by the fire fighters.


There is a recent case in San Diego involving 4 city firemen who were ordered to march in a "gay pride" parade. Here is an excerpt from the press release put out by the Thomas More Law Center, which is representing the firemen:


Four respected San Diego firefighters were ordered, against their wishes, to participate in uniform on their city fire truck in the city’s annual “Gay Pride” parade. During the course of the ensuing three hour long ordeal, the firefighters were subjected to vile sexual taunts from homosexuals lining the parade route. This included the following statements: “show me your hose,” “you can put out my fire,” “you’re making me hot,” “give me mouth-to-mouth,” “you look hungry, why don’t you have a twinkie (from a man wearing a “Girth and Mirth” t-shirt),” and “blow my hose.” These firemen are devoted husbands and fathers. When they refused to respond to the crowd, some in the crowd turned hostile and started shouting, “F—k you firemen” and others began “flipping them off.”

San Diego area attorney, Charles LiMandri, the West Coast Director of the Thomas More Law Center, a national public interest law firm based in Ann Arbor, Michigan, is representing the firefighters in their legal claims against the city. LiMandri was also the lead counsel in the successful Mt. Soledad Cross case in San Diego. A 52 year native San Diegan, LiMandri stated: “What happened to these dedicated public servants was inexcusable. The City should have known from past experience the kind of offensive activities that go on at this event. This was a clear case of sexual harassment in violation of state and federal law as well as the City’s own code of conduct.”

Richard Thompson, President and Chief Counsel of the Thomas More Law Center added, “These firefighters dedicated their lives to save the lives of others. They did not sign on to become unwilling props to a controversial political and social agenda.”

Continued Thompson, “The constitutional right to free speech also protects the right not to speak. These men should not have to explain to their families, friends and church congregations that their presence at a celebration of lewdness and obscenity in support of the homosexual agenda was because they were forced there by way of a direct order. This is a clear violation of their constitutional rights, and the City must be held accountable. It should never happen again to any city employee.”


May city government compel its employees to march in a parade designed to endorse a controversial ideological position? Would the Free Exercise Clause protect a fireman whose objections were based on sincerely held religious beliefs? What about the right of religious belief? What about the right not to be compelled to affirm a belief with which you disagree?

Polygamy and Lawrence

Over at Concurring Opinions, there is a great post about Utah's law banning bigamy. Check it out!

Dorf on Standing

"The Supreme Court Oral Argument in the Global Warming Case Reveals What's Wrong with the Standing Doctrine"