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SCOTUS Holds Texas Would “Rather Be Golfing”

July 16, 2015

By: Nichole Pieper, 3L, Liberty University School of Law

Introduction

            Government censorship is shown in many recent cases where States are banning “Choose Life” license plates because the message is Pro-Life and the government assumes the public will find it offensive. The voice of the people can be censored under the guise of government speech as recently ruled in Walker v. Sons of the Confederate Veterans. The Court has now allowed the government to decide for you what you think is offensive. Thus, the government establishes the new political and social norms through authorized censorship.

The Case

Issue

            The Texas Division of The Sons of Confederate Veterans (SCV) filed suit against the State of Texas after their design for a specialty license plate was rejected by the DMV’s submission process. The design contained a confederate flag, the SCV’s logo, and the words “SONS OF CONFEDERATE VETERANS” along with the State’s name and silhouette.[1] The application was denied because public sentiment showed concern that the plate might be viewed as offensive because of its use of the Confederate flag.

Holding

            On June 18, 2015, the Supreme Court ruled in favor of the State of Texas in holding that specialty license plates are government speech.  

Rule

            The Court ruled that when the government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.[2] The Court said that it has refused “to hold that the Government unconstitutionally discriminates on the basis of viewpoint when it chooses to fund a program dedicated to advance certain permissible goals, because the program in advancing those goals necessarily discourages alternative goals.”[3]

Similarities to Summum  

            The Court finds Pleasant Grove City v. Summon to be dispositive in holding that the license plate designs are government speech. In Summum, the city accepted a privately donated monument and placed it on city property. The Court held that the city accepting the monument and placing it on city property was expressive conduct and, therefore, government speech. The court found three areas consistent with the holding and analysis in Summum.

            First in Summum, the Court emphasizes the historical significance of governments using monuments to speak to the public. The Court says the government intends to convey a message or a feeling to those who see the monument. Similarly, like the monument in Summum, the Court in Walker reasoned that the State wishes to display a message by the license plates it decides to approve.[4]

            Second, in Summum the Court notes that it was uncommon for property owners to allow permanent monuments to be put on their property without agreeing with the message[5]. This Court compares those property owners with Texas’s DMV and the State supporting messages on government property license plates. According to Summum, a reasonable observer viewing the monuments will associate the monument with the speaker. Likewise, the Court holds that the license plate designs are closely associated with the State and the reasonable observer will associate the message on the plate with the State.[6] The State believes that by endorsing the plate the reasonable observer will believe the State is supporting the offensive message of the Confederate Flag and the Court agrees.   

            Last, the Court found that in Summum the city maintained control over the selection of the monuments to be placed in a park much like Texas maintained control over the selection of which designs would become license plates. Similar to Summum, Texas had full control over final selection of the license plates.[7]

Forum

            The Court fails to hold that there is a forum in Walker or a specific place designated, by the government or tradition, for speech and expression. The court recognizes four established forums: traditional public, designated public, non-public, and limited public. The court first recognizes the traditional public forum in which the private speaker has the full First Amendment Freedom of Speech in places that have traditionally been seen as public such as parks and sidewalks.[8] In this forum, the government may not discriminate based on content or viewpoint unless there is a compelling State interest.

            The Court also recognizes the designated public forum, which is similar to the traditional public forum, but is government property that has not traditionally been regarded as a public forum that is intentionally opened up for public use.[9] Examples of designated public forums include, municipal theaters or State run college classrooms, which are set aside for meetings or events.  The government may not discriminate based on content or viewpoint in this forum either, unless there is a compelling State interest. Thus, the speaker is afforded full First Amendment protection.

            The Court also assessed the non-public forum. This is government property that is not open to the public. The government chooses to allow only certain groups to use that property under this forum and may not discriminate based on viewpoint unless there is a compelling State interest, but “access … can be restricted as long as the restrictions are reasonable and are not an effort to suppress expression merely because public officials oppose the speaker's view.”[10]

            The final forum, which the Court considers, is the limited-public forum. This forum is created when the government has “reserved a forum for certain groups or for the discussion of certain topics.”[11] The government may not discriminate based on the viewpoint of the speech when allowing people to use the property unless there is a compelling State interest, but may discriminate based on the class or type of speech.

                The Court holds that there is no forum analysis for government speech, and ultimately concludes that forum analysis does not apply. Thus, there are no restrictions on how far the government may discriminate against speech. There are no First Amendment protections for the private speaker when the government is considered the speaker, and the speech can be discriminated against based on content and viewpoint.

Conclusion

            The Court holds that license plate designs are considered the speech of the State and not the individual. Because the Court places the speech in this category, it gives the State a voice and eliminates any restriction on State discrimination of speech. The Court, however, holds that the Wooley[12] protection still applies for the private speaker, meaning that the government cannot force you to speak or adopt its message under the First Amendment. You do not have a right to make sure your view is represented but the State cannot make you buy a certain license plate endorsing their view or speech. The court concludes by saying that there is individual speech represented by the license plate but that the speech is considered government speech.[13]

Criticism of Summum

            Justice Alito writes a dissent in Walker giving cause for concern. Having written the majority opinion in Summum, Alito’s dissent in Walker highlights the divergence from the reasoning in Summum. The majority ignores Alito’s warnings and forces an analogous situation out of Summum in order that the State may continue to regulate speech in the name of political correctness, out of the fear of offending citizens, and to keep State run programs free to control.

            Justice Alito uses common sense and the “reasonable observer” to illustrate that license plate designs are private speech in a limited public forum. Justice Alito gives this vivid example-  “If a car with a plate that says ‘Rather Be Golfing’ passed by at 8:30 a.m. on a Monday morning, would you think: ‘This is the official policy of the State- better to golf than to work?’”[14] Alito’s example shows that the reasonable observer would not conclude that the State has endorsed that message as an actual State policy or motto. Better yet, as Alito points out, the person displaying the license plate pays extra to display that message. Alito also drives his point home by saying:

“How many groups or individuals would clamor to pay $8,000 (the cost of the deposit required to create a new plate) in order to broadcast the government’s message as opposed to their own? And if Texas really wants to speak out in support of, say, Iowa State University (but not the University of Iowa) or “Young Lawyers” (but not old ones), why must it be paid to say things that it really wants to say?” [15]

            Justice Alito brings to the Court’s attention that the main concern of Summum was the amount of space in the park for the monuments.[16] The government was able to pick and choose, because there physically was not enough room for every ideology. Here, the situation is different, and the Court has completely misapplied the reasoning behind Summum. License plates are made when ordered and do not have to be stored. Therefore, there are no space issues and the reasoning in Summum is not applicable. “The only absolute limit on the number of specialty plates that a State could issue is the number of registered vehicles.”[17]

Lack of Forum

            In his historical analysis, Justice Alito shows how the State opened up government property for private speech by creating a limited public forum with the license plate design program. This is where the speech shifts from pure government speech to private speech with the creation of a limited public forum. Alito shows how the Court has effectively taken away the forum analysis in order to give the government a voice, even though it never had a voice. If the Court had ruled that this was private speech, the government would be restricted in what it would be able to censor.

Future Concerns For Free Speech

            The future concerns for private speech are very distressing to anyone in a limited public forum in which government speech and private speech are combined. If the court can find that the State’s position is in any way homogenous to the situation in Summum then they can classify the speech as government speech and take away any Free Speech right of the private speaker.

            Justice Alito mentions State owned billboards with ad space that could be regulated in the same manner.[18] If the State buys and places billboards along its highways with the slogan, “Don’t Text And Drive. It’s The Law!” and leaves part of the billboards empty for ad space to rent, the State would be able to discriminate on both content and viewpoint the speech of those ads.

            In effect, by deeming it government speech, the Court gave the State a voice by allowing it to discriminate based on viewpoint where before the State did not have a voice and was not speaking. Now we pay to have the government speak for us. Traditionally the Court has held whether the reasonable observer would view the speech as the government speaking; now the Court holds that it is government speech because there is a need for government run programs to survive.[19] Walker is the epitome of Court supported bureaucracy as illustrated by its theft of Free Speech. The State now becomes our voice for the sake of State run programs, for “the good of the people.” This is just the beginning and the question we need to be asking is, where do we draw the line?

Circuit Court Split

            The Circuit courts have been divided on how they have ruled on what to call license plate speech. Before Walker, the Circuit Courts were not able to come to a consensus on whether license plate designs are private or government speech. These cases find themselves manifested primarily in one type of license plate displaying the motto “Choose Life.”  Many States have denied the slogan design.  The Seventh, Eighth, and Ninth Circuit Courts have all held that license plate designs are private speech. The Fourth Circuit held that license plate speech is hybrid speech consisting of both government and private speech. The Sixth Circuit has held that license plate speech is government speech.[20] The Supreme Court in Walker follows the reasonable observer test used in the Seventh and Eighth Circuits in part while combining it with the rational in Summum. These cases are different; they are not a business or a sports team that wants their name on a license plate as an advertisement, but a Pro-Life organization that wants to use the proceeds from the license plates to raise money in support of ending abortion.

Conclusion

            The Court has left it to the discretion of the State to give one group of people a voice because the State finds that view acceptable, while a whole part of the population is silenced. The main reason for which the First Amendment was created- to advocate for political discussion and the differing of views and opinions- is violated by the bang of a gavel and the partiality of the State. In the end, whether it’s a Pro-Life or favorite football team license plate, this case is of extreme importance to every American. With this ruling, the Court opens doors for future speech discrimination on any level so long as the State can show that they have a need that is the tiniest bit comparable to Summum.

 

[1] Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ­­___, 4 (2015).

[2] “When government speaks, it is not barred by the Free Speech Clause form determining the content of what it says Id. at 1 (citing Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467-468 (2009)).

[3] Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ___, 6 (2015).

[4] “…when a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure.”  Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ___, 8 (2015).

[5] Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 471 (2009).

[6] “As a result, ‘persons who observe donated monuments routinely-and reasonably-interpret them as conveying some message on the property owner’s behalf.’ And ‘observers’ of such monuments, as a consequence, ordinarily ‘appreciate the identity of the speaker’” Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S.___,8 (2015) (citing Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 471(2009)).

[7] “Third, we found relevant the fact that the city maintained control over the selection of monuments.” Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ___, 8 (2015).

[8] Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983).

[9] Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469 (2009).

[10] Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800, (1985).

[11] Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ___, 14 (2015).

[12] “Where the State's interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh an individual's First Amendment right to avoid becoming the courier for such message. We conclude that the State of New Hampshire may not require appellees to display the State motto upon their vehicle license plates.” Wooley v. Maynard, 430 U.S. 705, 717 (1977).

[13] “We have acknowledged that drivers who display a State's selected license plate designs convey the messages communicated through those designs.” Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ___,17-18 (2015).

[14] Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ___, 20 (2015).

[15] Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ___, 32 (2015).

[16] “A final factor that was important in Summum was space. A park can accommodate only so many permanent monuments.” Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S.__ , 31 (2015).

[17] Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ___, 31 (2015).

[18]  “If the State can do this with its little mobile billboards, could it do the same with big, stationary billboards?”  Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ___, 21 (2015).

[19]  “The Court says that all of these messages are government speech. It is essential that government be able to express its own viewpoint, the Court reminds us, because otherwise, how would it promote its programs, like recycling and vaccinations?” Id. at 20.

[20] Scott W. Gaylord, “Kill the Sea Turtles” and Other Things You Can't Make the Government Say”, 71 Wash. & Lee L. Rev. 93, 104-23 (2014).

 

 

KEEP SEX OUT OF KINDERGARTEN

July 10, 2015

By: Hannah Phillips, 2L, Liberty University School of Law

           It’s the first day of kindergarten. Each child is excited to learn about the alphabet, numbers, and – sex? Under the guise of “family life” or “health” education, children are exposed to graphic sexual images and ideas that damage their young minds. A child’s undeveloped brain is not prepared to make decisions regarding sexuality.

Obscenity Exemptions

            Outside of the classroom, it is illegal to expose children to sexually explicit material. For example, Virginia law prohibits any person to “print, copy, manufacture, produce, or reproduce any obscene item for purposes of sale or distribution.”[1] Schools, however, are the exception. Under Virginia law, the prohibition does not apply to the “purchase, distribution, exhibition, or loan of any book, magazine, or other printed or manuscript material by any library, school, or institution of higher learning.”[2] According to Dr. Judith Reisman and Mary McAlister, children “are exposed to otherwise illegal sexually explicit materials because of ‘obscenity exemptions’ granted to schools, libraries, and other organizations.”[3] The young minds that should be protected in their innocence are instead exploited in the name of education.

Guidelines for Comprehensive Sexuality Education

            Planned Parenthood and the Sexuality Information and Education Council of the United States (SIECUS) are the frontrunners of comprehensive sexuality education taught from kindergarten through twelfth grade. Many advocates claim that comprehensive sexuality education in early grades is necessary for a child’s healthy development. In 2004, SIECUS published its third edition of Guidelines for Comprehensive Sexuality Education: Kindergarten through 12th Grade. A “national task force of experts” devised the Guidelines to “help educators create new sexuality education programs and evaluate already existing curricula.”[4] In addition to over 100,000 copies that have been dispersed across the United States, more than 1,000 people each month download the Guidelines from SIECUS’ website.[5] SIECUS praises the Guidelines as “popular and valuable.”[6] The National Guidelines Task Force that developed the Guidelines originally consisted of members from Planned Parenthood, Indiana University, and various public school systems. Although SIECUS claims that a “majority of parents want schools to provide comprehensive education about sexuality,” many parents do not know what schools are teaching their children.[7]

            SIECUS’ Guidelines presents comprehensive sexuality education as a “lifelong process” that begins at birth and continues throughout adulthood.[8] As SIECUS’ ultimate goal, a “sexually healthy adult” will “affirm that human development includes sexual development which may . . . include . . . sexual experience,” “affirm one’s own sexual orientation,” and “affirm one’s own gender identities.”[9] The Guidelines recommend that schools teach children, ages 5 through 8, about masturbation, sexual intercourse, abortion, and sexual orientation. Little children are taught that “touching and rubbing one’s own genitals to feel good is called masturbation” and that “some boys and girls masturbate” in a “private place.”[10] Educators are supposed to instruct five-year-olds on “vaginal intercourse – when a penis is placed inside a vagina.”[11] The Guidelines describe abortion as the solution for circumstances in which “women become pregnant when they do not want to be or are unable to care for a child.”[12] Kindergarteners learn that “human beings can love people of the same gender and people of another gender,” according to a person’s sexual orientation.[13] Under SIECUS’ Guidelines, sexual perversions are deemed natural, favorable, and void of all consequences. Similarly, Planned Parenthood promotes initiating comprehensive sex education in kindergarten because “sexuality is an integral part of each person’s identity.”[14] Although Planned Parenthood does not lay out its own guidelines for comprehensive sexuality education, it directs interested educators to SIECUS’ Guidelines.[15]

            Schools and libraries provide children with access to explicit sexual material and ideas in books. Recommended by SIECUS’ Guidelines as a resource for children, the book It’s Perfectly Normal: Changing Bodies, Growing Up, Sex, and Sexual Health by Robie H. Harris covers topics such as sexual reproduction, sexual desire, sexual intercourse, and homosexuality. Although the book is designed for children ages ten and up, it includes cartoon images of a naked man and woman engaging in sexual intercourse, two men and two women in homosexual relationships, and multiple naked men and women depicted at different stages in life.[16] Advocates of comprehensive sexuality education in kindergarten assure cautious parents that sex education teaches only scientific facts. According to SIECUS, however, comprehensive sexuality education includes “forming attitudes, beliefs, and values about . . . identity, relationships, and intimacy.”[17] Sex education does not only teach facts, but it also teaches values. As religious and traditional values become irrelevant, sexual promiscuity becomes rampant.

The Man behind Comprehensive Sexuality Education

            The current traumatization of children with explicit sexual images and ideas finds its roots in the work of “scientist” Alfred Kinsey in the 1940s. According to Stolen Honor Stolen Innocence, Kinsey claimed that “children are . . . unharmed by sexual activity even from birth.”[18] In his book Sexual Behavior in the Human Male, Kinsey included several tables depicting the “erotic arousal” of between “1,746 to 2,035 boys and girls” based on “instrumental measurement” and “timed with a stopwatch.”[19] Kinsey recruited pedophiles, parents, and nursery personnel to molest and rape children under the guise of “scientific research.”[20] Kinsey used his infamous Table 34 to support his contention that children are capable of “orgasm.” Table 34 “reported around-the-clock experimental ‘data’ on infants and young boys,” with the youngest child being five months old.[21] The infants and children who were sexually stimulated responded with pain, fright, “extreme tension with violent convulsion,” or fainting – a reaction which Kinsey considered “orgasm.”[22] What Kinsey deemed an “orgasm” in infants, however, can only be interpreted as an absolute protest to the violation of their bodies. From his “data,” Kinsey concluded that children are sexual from birth and can benefit from “incest or sex with adults” and that all forms of sexual behavior are both permissible and beneficial.[23]

            The recent shift toward teaching explicit sex education in early grades is entirely based on the fraudulent research of this child rapist. Before Kinsey’s reports were published, all sexuality education was the “responsibility of parents or legal guardians.”[24] However, after Kinsey, school teachers became the primary instructors of sexuality information and health. Kinsey’s corrupt ideas are currently taught under deceptive pseudonyms such as “sex education, AIDS prevention or awareness, family life, health, hygiene, home economics, physical education, even ‘abstinence’ education.”[25] Based on Kinsey’s false ideologies, Planned Parenthood endorses teaching children comprehensive sexuality education in kindergarten since “learning about sexuality . . . begin[s] at birth and continue[s] throughout our lives.”[26] The false contention that children are sexual from birth remains prevalent in our schools today. Just as Kinsey violated the fragile bodies of thousands of infants and children, schools are violating the fragile minds of children.

The Harm Caused by Comprehensive Sexuality Education

            A Child’s Brain

            According to Dr. Judith Reisman and Mary McAlister, every “child or young person who views sexually explicit images suffers real harm.”[27] This harm is irreversible on a child’s brain. Brains are “far more impressionable in early life than in maturity.”[28] A child cannot process auditory and visual information like an adult. In contrast to an adult, “young children’s brains are more vulnerable to developmental problems should their environment prove especially impoverished or un-nurturing.”[29] In “Soft Porn” Plays Hardball, Dr. Reisman recognizes that “the human brain experiences conflicting and confusing images and information when viewing pornography.”[30] An impressionable child is confused when forced to absorb sexually explicit material. Describing pornography’s influence, Dr. Reisman continues, “When one reaches a state of emotional arousal faster than the body can rally its adaptive reactions, a form of stress follows.”[31] Children who are exposed to sexually explicit images experience stress and anxiety that carries into their adulthood.

            The Rights of Parents

            “Obscenity exemptions” provided for schools erodes the rights of parents. According to Pierce, the Supreme Court declared, “The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”[32] All parents have the right and responsibility to educate their children. President Obama, however, endorsed teaching “medically accurate, age-appropriate, and responsible sex education” in kindergarten as “the right thing to do.”[33] Who determines what is age-appropriate for a kindergartener? Planned Parenthood? Local school boards? The federal government? Since schools have “obscenity exemptions,” schools can expose children to sexually explicit material and deem it “age-appropriate” by their own standards. SIECUS considers teaching about masturbation, sexual orientation, and sexual intercourse to be “age appropriate” for five-year-olds. Parents have a duty to protect their children from harm. Schools that indoctrinate young students with comprehensive sexuality education usurp the authority of parents.

Conclusion

            SIECUS “believes that all people have the right to comprehensive sexuality education that addresses the socio-cultural, biological, psychological, and spiritual dimensions of sexuality by . . . exploring feelings, values and attitudes.”[34] Do five-year-olds have the right to digest sexually explicit material in school? Does SIECUS or the federal government have the right to impose their perverse and twisted values on your children? On that first day of kindergarten, each child anticipates learning about numbers and the alphabet. Let’s keep sex out of it.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1] VA Code Ann. § 18.2-374.

[2] VA Code Ann. § 18.2-383.

[3] Judith Reisman and Mary E. McAlister, “‘Obscenity Exemptions’ for Educators Violate Children’s Civil Rights by Creating a Hostile Learning Environment” (executive summary, Liberty University School of Law, 2015), 1.

[4] “Guidelines for Comprehensive Sexuality Education: Kindergarten through 12th Grade,” Sexuality Information and Education Council of the United States (2004): 5, http://www.siecus.org/_data/global/images/guidelines.pdf (accessed June 29, 2015).

[5] Ibid.

[6] Ibid.

[7] Ibid., 13.

[8] Ibid.

[9] Ibid., 16.

[10] Ibid., 51-52.

[11] Ibid., 26.

[12] Ibid., 61.

[13] Ibid., 29.

[14] Planned Parenthood, http://www.plannedparenthood.org/educators/implementing-sex-education (accessed June 29, 2015).

[15] Ibid.

[16] Robie H. Harris and Michael Emberley, It’s Perfectly Normal: Changing Bodies, Growing, Sex, and Sexual Health (Somerville, MA: Candlewick, 2009), 14-20.

[17] “Guidelines for Comprehensive Sexuality Education: Kindergarten through 12th Grade,” 13.

[18] Judith Reisman, PhD, Stolen Honor Stolen Innocence: How America was Betrayed by the Lies and Sexual Crimes of a Mad “Scientist” (Orlando, FL: New Revolution Publishers, 2013), 133.

[19] Ibid., 135.

[20] The Kinsey Syndrome: How One Man Destroyed the Morality of America, DVD, Directed by Christian J. Pinto (American History Films, 2008).

[21] Reisman, Stolen Honor Stolen Innocence, 144.

[22] Ibid., 146-147.

[23] Ibid., 170.

[24] Ibid., 133.

[25] Ibid.

[26] Planned Parenthood, http://www.plannedparenthood.org/educators/implementing-sex-education (accessed June 29, 2015).

[27] Judith Reisman and Mary E. McAlister, “‘Obscenity Exemptions’ for Educators Violate Children’s Civil Rights by Creating a Hostile Learning Environment” (executive summary, Liberty University School of Law, 2015), 1.

[28] Zero to Three: National Center for Infants, Toddler, and Families, http://main.zerotothree.org/site/PageServer? pagename=ter_key_brainFAQ (accessed July 2, 2015).

[29] Ibid.

[30] Judith Reisman, PhD, “Soft Porn” Plays Hardball: Its Tragic Effects on Women, Children, and the Family (Lafayette, LA: Huntington House Publishers, 1991), 17.

[31] Ibid., 18.

[32] Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925).

[33] Terence P. Jeffrey, “Obama: Sex Ed for Kindergarteners is the ‘Right Thing to Do,’” CNS News, http://cnsnews. com/news/article/obama-sex-ed-kindergartners-right-thing-do (accessed July 2, 2015).

[34] Guidelines for Comprehensive Sexuality Education: Kindergarten through 12th Grade, 13.

Protecting Christian Adoption Agencies

August 5, 2014

By: Mark Trammell, Esq.

The recently introduced, “Child Welfare Provider Inclusion Act of 2014” already has created a stir. Aimed at prohibiting federal and state government from discriminating against child welfare service providers on the basis of sincerely held religious beliefs, at least one organization already labeled this bill “homophobic.”

To be fair, although the word “marriage” isn’t written anywhere in the bill, it is undeniable that in today’s culture, sincerely held religious beliefs and marriage policy overlap, in part. Having said this, labeling this bill as “homophobic” is a gross mischaracterization. The bill, H.R. 5285, states simply,

“The Federal Government, and any State that receives federal funding for any program that provides child welfare…shall not discriminate or take an adverse action against a child welfare service provider on the basis that the provider has declined or will decline to provide, facilitate, or refer for a child welfare service that conflicts with, or under circumstances that conflict with, the provider’s sincerely held religious beliefs or moral convictions.”

So why is this bill even necessary? As the bill states, currently, “in some States, including Massachusetts, California, Illinois, and the District of Columbia,” child welfare service providers are being discriminated against on the basis of sincerely held religious beliefs. In sum, by denying government contracts, grants, or licenses to faith-based child welfare service providers, these faith-based organizations are prohibited from facilitating adoptions and foster care.

Bottom line, unlike the discriminatory policies exhibited by a handful of states, pertaining to child welfare services, the “Child Welfare Provider Inclusion Action of 2014” prevents discrimination, it doesn’t create it. To be clear, this bill doesn’t prohibit anyone from being a foster parent or adopting a child. Furthermore, by allowing child welfare service providers that adhere to the belief that a child deserves both a mom and a dad, often faith-based, the ability to facilitate child welfare services, the bill actually provides greater opportunity for children to be placed in the home of a loving family. Isn’t that the goal anyway?

So why would the Left oppose this anti-discrimination bill? I think the answer is twofold, at a minimum. One, liberals will never concede that a corporation, or any other organization, has the right to religious freedom. Second, opposition to H.R. 5285 is less about objecting to any particular child welfare service provider and more about objecting to traditional beliefs defining family.

The Left ignores an organization’s religious freedom.

The Left’s opposition to an organization’s religious freedom was never more showcased than in Hobby Lobby. Liberals wholly rejected the Green family’s right to be Christians when the Green family refused to provide abortion-inducing drugs to employees of Hobby Lobby. Here, the circumstances may be different from Hobby Lobby, but the underlying right to religious freedom, and the Left’s opposition to religious freedom, remains the same.

Following the Left’s logic, if one were to assume that a corporation is not a person deserving of religious protections, then one would have to come to the conclusion that the critics of this bill do not have a problem with faith-based organizations that offer child welfare services. After all, the organizations in question lack the ability to repent of sins, receive Salvation, be baptized, and go to Heaven.

If a corporation is incapable of exercising religious freedom, again, because it can’t go to church, be baptized, go to Heaven, etc., then the critics of this bill cannot possibly also assert that they disagree with the very religious beliefs that they simultaneously assert said corporation cannot have. As such, the bill’s critics must take umbrage with the religious tenants held by the individual families that are directly providing child welfare services, not the child welfare service organization itself.

Critics of this bill would prefer the State raise children rather than Evangelical Christians and Catholics.

Why would anyone protest to an Evangelical Christian or Catholic couple adopting a child or being foster parents? It all boils down to who is defining what is in the best interest of the child. Having said this, the State can never be an equivalent substitute for a loving mom and dad, even when said mom and dad hold a different religious belief, pertaining to marriage policy, than is held by popular culture.

Preventing Bible-believing families from being adoptive or foster care parents, based on their belief that God created marriage to be the union of one man and one woman, is contrary to the First Amendment. In West Virginia State Board of Education v. Barnette, Justice Jackson wrote, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” See West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943).

Critics of this bill assert that being an adoptive parent or a foster parent is not a right; it is a privilege. I agree with that statement. However, the question here is not whether being an adoptive parent or foster parent is a right, but whether a national orthodoxy, in either religion or “other matters of opinion” pertaining to marriage, has been created.

Excluding Evangelical Christians and Catholics, either at the organizational level or individual level, from participating in child welfare protective services, would create a national orthodoxy that radically redefines the family unit. That national orthodoxy would not only contradict over 200 years of U.S. history and tradition as it pertains to marriage and family, but also perpetuate religious discrimination.

To oppose the “Child Welfare Provider Inclusion Act of 2014” is to promote religious discrimination. Furthermore, preventing children from being placed in foster care homes or from being adopted by loving parents, who happen to hold sincerely held religious beliefs that reflect Biblical teaching, is to use children as pawns for political gain. The purpose of foster care and adoptive services is to benefit children, not political causes. The “Child Welfare Provider Inclusion Act of 2014” would open more opportunities for children to benefit from child welfare services and would increase the possibility of these children being adopted. This anti-discrimination bill is the epitome of “tolerance” and deserves to become law.  

 

Democrats Say Women Need Drugs to Succeed

July 31, 2014

By: Sean Maguire, Law Intern, Liberty Center for Law & Policy

     On July 9th, more than forty senate Democrats introduced a bill to force corporations to pay for all forms of women's contraception. It was called the “Protect Women's Health From Corporate Interference Act.” This bill died quickly, and won't be coming up for a vote, but the Democrats will try to force companies to pay for contraception again. We need to understand why.

     The Green family of Hobby Lobby and the Hahn family of Conestoga Wood fought long and hard to win in the Burwell v. Hobby Lobby Supreme Court decision. This bill would have “undone” that decision. It would have required Hobby Lobby and all other for-profit companies to explicitly cover all forms of contraception approved by the FDA. It would also have given Congress the authority to require corporations to cover any other treatments in the future. It would most assuredly have put corporations, and congress, right in the middle of women's health.

     This bill is another example of misnamed legislation; it says it would protect “Women's Health” from interference when it would really force corporations to get involved. It would have taken away legitimacy from the highest court in the land by “undoing” the judicial decree that they issued only a month ago. It would have violated religious liberty by forcing people with deeply held religious convictions to violate those convictions when they go to work. It would have limited freedom by forcing corporations to pay for everything that congress mandates.

     The more than forty Democrats that cosponsored this bill want every corporation, including closely-held ones, to be involved in women's health - especially in their purchasing of contraception. They wrote the bill to make sure that no employers can “deny coverage of a specific health care item or service” in their health plans.

     They failed this time, but they will try again, rest assured. Why do they think that women should have contraception paid for by their employers?

     This bill implies that women need these drugs to be equal to men. “In addition to providing health benefits for women, access to birth control has been directly connected to women’s economic success and ability to participate in society equally,” the bill says in its findings section.

     The architects of this bill would have us believe that women aren't able to participate in society equally unless they can take these drugs; that women will be treated equally when they contracept. Women shouldn't have to take drugs in order to be treated equally. Equal treatment is something that should be given whether women have birth control or not. This bill wouldn't eliminate or reduce mistreatment of women. Women who have access to birth control and choose not to use it will gain nothing from this bill. The mistreatment of women who get pregnant in the workforce will continue. The Senate should work to eliminate pregnancy discrimination rather than trying to sweep the problem under the rug by giving women drugs.

     Furthermore, in the findings of this bill, the bill states, “[w]omen with access to birth control are more likely to have higher educational achievement and career achievement, and to be paid higher wages.” The bill purports that women have to take drugs in order to advance in their education and career. As a matter of public policy, the bill advances the belief that women cannot excel in these fields without birth control paid for by someone else.

     However, the premise isn't true. Women don't need to take birth control in order to succeed. Women certainly don't need anyone else to pay for their birth control in order to succeed. There are many uses for birth control, such as treating a hormonal condition, but this bill only thinks about pregnancy prevention. The bill says in its findings that it is the “direct medical costs . . . and indirect costs related to employee absence and reduced productivity” during pregnancy that keep women from success.

    This bill also says that women who get pregnant are less productive, and cost employers “15 to 17 percent more” than it would cost them to just provide birth control. The idea behind this bill is that women will be treated equally when they stop getting pregnant and stop costing employers money. Instead of ending discrimination in the workplace, Senate Democrats want to give women drugs and end pregnancy in the workplace.

     Women don't need to avoid being pregnant in order to succeed. The early feminists, like Susan B. Anthony and Elizabeth Candy Stanton, accomplished great works in this country while embracing the beauty of motherhood. They didn't need birth control to accomplish their mission. Women today still don't need birth control to accomplish great things. Success without birth control seems strange to Senate Democrats. In their eyes there is only one way for a woman to succeed, and she needs drugs to do it.

The Court to Coakley, “Aim a Little to the Left”

June 27, 2014

By: Sean Maguire, Liberty Center for Law & Policy

Pro-Life colleagues and friends are quickly applauding the unanimous decision from the United States Supreme Court in McCullen v. Coakley, which struck down the Massachusetts buffer zone law. The decision allows McCullen and other sidewalk counselors in Massachusetts to continue counseling women on the threshold of abortion clinics. The decision rightly concludes that this buffer zone law is unconstitutional.

            Additionally, this decision has some great language in support of sidewalk counseling. Instead of disparaging sidewalk counselors, this decision clearly distinguishes them from “protestors.” The Chief Justice gives the work of sidewalk counselors an endorsement from the highest court in the land.

            “Petitioners take a different tack” than “aggressive” protestors at abortion clinics, Justice Roberts wrote. “They attempt to engage women approaching the clinics in what they call 'sidewalk counseling,' which involves offering information about alternatives to abortion and help pursuing those options.”

            This nice language about sidewalk counseling and the ultimate conclusion that this particular law is unconstitutional are great. There is something else in the decision, however, which should cause pro-life advocates great concern.

            The Supreme Court has, for decades, been advancing a tradition of relaxing First Amendment standards when regulating speech around abortion clinics. See, e.g., Hill v. Colorado, 530 U.S. 703 (2000); Madsen v. Women's Health Center, Inc., 512 U.S. 753 (1994). So when the question of the buffer zone law in Massachusetts was before the Supreme Court this year, many were anxious to see whether this tradition would be continued.

            If a restriction is based on the message being spoken (if it is “content-based”) then it will be subject to strict scrutiny. Otherwise, for a content-neutral restriction, the government need only meet the lesser standard of a time, place, and manner restriction. The decisions of Hill and Madsen pushed for a jurisprudence that weighs restrictions on free speech around abortion clinics only by this lesser standard.

            Here the Supreme Court answered the question of the constitutionality of this Act with a unanimous no. They all got it right when the said this Act was not “narrowly tailored,” which is required for time, place, and manner restrictions. However, the majority got it wrong when they answered the question of whether this law was content-neutral.

Why Was the Question of Content-Neutrality Addressed?

            Justice Scalia argues that this should not have been addressed. “Inasmuch as Part IV [of the majority opinion] holds that the Act is unconstitutional because it does not survive the lesser level of scrutiny associated with content-neutral “time, pace, and manner” regulations, there is no principled reason for the majority to decide whether the statute is subject to strict scrutiny.”

            Justice Roberts justifies taking up the question of content-neutrality in the opinion.

                        “[T]here is good reason to address content neutrality. In discussing whether the Act is narrowly tailored . . . we identify a number of less-restrictive alternative measures that the Massachusetts Legislature might have adopted. Some apply only at abortion clinics, which raises the question whether those provisions are content neutral. . . . While we need not (and do not) endorse any of these measures, it would be odd to consider them as possible alternatives if they were presumptively unconstitutional because they were content based and thus subject to strict scrutiny.”

            It is odd, indeed, for a Supreme Court to gratuitously offer suggestions for how a Legislature could narrowly tailor a law specifically for abortion clinics.

            The justices of the Supreme Court were split on the issue of content-neutrality. “One would have thought that the Court would avoid the issue by simply assuming without deciding the logically antecedent point,” Scalia says in his concurrence. (Scalia concurring). The Court doesn't avoid the issue. The majority takes it up and decides that this law restricting speech specifically in front of abortion clinics is not content-based.

Why Did the Court Conclude that This Law Was Content-Neutral?

            “Every objective indication shows that the provision's primary purpose is to restrict speech that opposes abortion,” Scalia points out. The buffer zone law only burdened the speech in front of abortion clinics. It should have been clear to the Court that this was a content-based law. The majority ignored the objective indications and chose to believe the language of the statute and the arguments of those defending it, instead. The majority believed that this law was about fixing traffic problems, not suppressing pro-life speech. If the law was only about solving traffic problems, then why did it only apply to abortion clinics and not to every other venue with a traffic problem?

            One objective indication the court ignored is the fact that there was not a traffic problem. The Court stated that traffic was “a problem shown to arise only once a week in one city at one clinic.” The statute targeted every abortion clinic in the commonwealth even though the Court saw there were only traffic problems at one.

            “The Court uses this striking fact (a smoking gun, so to speak) as a basis for concluding that the law is insufficiently “tailored” to safety and access concerns (Part IV) rather than as a basis for concluding that it is not directed to those concerns at all, but to the suppression of antiabortion speech.” Scalia said.

            Scalia goes on to give this analogy: “That is rather like invoking the eight missed human targets of a shooter who has killed one victim to prove, not that he is guilty of attempted mass murder, but that he has bad aim.”

            The majority ignored all of the objective standards showing that this law was really about suppressing pro-life speech in front of abortion clinics. They believed that this was a content-neutral law because the law said so. The majority reasoned that the Massachusetts Act's “stated purpose is to 'increase forthwith public safety at reproductive health care facilities.'”

            Rather than considering objective evidence that this statute disproportionately affects speech about abortion where there is no issue of safety, the Court accepted the unsubstantiated argument of the government. The Court ruled that the law is content-neutral because the government said so.

Why Does it Matter that the Court Said it was Content-Neutral?

            The consequences of this wrong result will be that “jurisdictions across the country” can “restrict antiabortion speech without fear of rigorous constitutional review.” (Scalia concurring).

            Ruling that these types of laws are not targeting pro-life speech (or are “content-neutral”) gives Massachusetts a second try to shoot down pro-life counseling efforts without having to face strict scrutiny.

            More than just giving Massachusetts another attempt, the majority in this decision also gives them a few tips for taking aim. In the decision, which explains why this law was not “narrowly-tailored,” the court gratuitously advises the state on how to accomplish narrow tailoring.

            The court advises that the Commonwealth of Massachusetts could limit sidewalk counseling efforts at all abortion clinics in Massachusetts by adopting a rule like the one in New York. The court suggests that Massachusetts consider passing a harassment ordinance, which would prevent the counselors from “follow[ing] or harass[ing] another person within 15 feet of the premises of a reproductive health care facility.” Pro-Life advocates should anticipate that this suggestion, and others like it, will be followed as soon as possible.

            Speech restrictions around abortion clinics may now be promulgated by state legislatures without being subjected to strict scrutiny. This could really hamper pro-life activities, even though those rules will still have to adhere to the time, place, and manner standards.

            Yes, pro-life advocates should be glad that McCullen and the other sidewalk counselors can resume their counseling work for the time being. They should also recognize that this majority decision has advanced the long tradition of giving special exemptions to speech regulations around abortion clinics. The Court has advanced a bad tradition which will be used to silence pro-life speech.

            Rules about speaking while in front of abortion clinics can now be passed without surviving strict scrutiny. The results could be devastating for pro-life efforts everywhere.

            This decision allows sidewalk counselors to save lives in the short term, but it is one that will have to be overcome in order to restore free speech in front of abortion clinics in the long term.

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