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Fulton v. Philadelphia Argument Recap

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The Supreme Court heard oral arguments in an important religious liberty case this week, Fulton v. City of Philadelphia. Sharonell Fulton and other foster parents who work with Catholic Social Services (whose work goes back 200 years in the city) brought suit after the City of Philadelphia tried to kick them out of the foster care and adoption arena because of their faith.

The city wants to force them to violate their faith and place children with same-sex couples. Concerned Women for America submitted a brief in support of the foster parent’s religious liberty.

This should be a simple case. The First Amendment to the U.S. Constitution prohibits any law prohibiting the free exercise of religion. That is exactly what the city is doing here in trying to prevent Catholic Social Services from serving the poor and needy in the way they have done for centuries.

Lori Windham, of the Becket Fund for Religious Liberty, who represented the foster parents put it succinctly for the justices. “The City has no compelling reason for excluding Catholic Social Services, which has exercised its faith by serving at-risk children in Philadelphia for two centuries,” she said in her opening presentation.

The real motivation behind this law, a blatant attack on Christians, was exposed in Court as Justice Samuel Alito asked a simple question: “How many same-sex couples in Philadelphia have been denied the opportunity to be foster parents as a result of Catholic Social Services’ policy?”

To which Ms. Windham responded, “Zero. In fact, Justice Alito, none have even approached Catholic Social Services asking for this approval and endorsement.”

Still, the liberal justices wanted to see a big problem here, suggesting, as they always do, that the situation is akin to Catholic Social Services discriminating against African Americans. But both, Ms. Windham for the foster parents and the federal government who also presented arguments in their support were careful to bring back the issue to what was really before them. “What the City’s trying to do here is tell religious groups who have been doing this prior to when the City got involved, ‘We’re going to exclude you; you can no longer carry out this work unless you take actions that are contrary to your faith.’”

Ms. Windham concluded saying, “In our pluralistic society, a properly functioning Free Exercise Clause is supposed to prevent this kind of unnecessary and harmful conflict. There are children in need of loving homes waiting for them. Neither Philadelphia nor [precedent] should stand in the way.”

Deputy Assistant Attorney General Hashim Mooppan also presented in support of religious liberty on behalf of the United States. He took the argument from where Ms. Windham left off. “Philadelphia has not afforded Catholic Social Services the tolerance of religious practice that is required by the Free Exercise Clause and vital to our pluralistic nation,” he said.

He was strong also in responding to the liberal justices’ contention that this requirement was neutral and did not target faith specifically. He highlighted that the city indeed made many exceptions to their supposed rule, including in law. “[U]nder 55 Pennsylvania Code 3700.64,” he highlighted, “the City requires agencies to consider both familial status and disability in certifying foster children — foster parents. The City has tolerated racial and ethnic-based outreach to — for foster parents. And then the City itself considers race and disability when placing children.”

But now, when it comes to taking into account faith, they want to bully Christian agencies to violate their deeply held beliefs to accommodate the city’s desired preferences.

Radical liberal attorney Neal Katyal represented the City of Philadelphia and tried to persuade the Court that they extended those exemptions at a different stage and so that made it different. It was not persuasive. Justice Alito, again, got to the heart of the matter: “[I]f we are honest about what’s really going on here, it’s not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents. It’s the fact that the City can’t stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old-fashioned view about marriage. Isn’t that the case?”

Katyal, of course, denied it and tried to deflect to another matter.

The new member of the Court, Justice Amy Coney Barrett, also asked important questions about the ramifications of the government’s actions in this case. She asked Mr. Katyal:

[L]et’s imagine that the state takes over all hospitals and says from now on, you know, we are going to be responsible for hospitals, but we will contract with private entities to actually run them. And so there’s a Catholic hospital and gets a contract with the City to run it. In fact, it’s a Catholic hospital that’s in existence before the state adopts this policy. And its contract with the state provides that there are — in the contract the state gives everyone is that you can get some exceptions for some medical procedures, but every hospital has to perform abortions.

The deflection continued. Justice Barret made an important point because as the size of government continues to grow, this sort of anti-religious bullying will only expand to more and more areas. Justice Alito, later on talked about homeless shelters, and one could think of any number of other spaces.

The city’s position is not only that people of faith cannot get government funding to serve the poor in those cases, but that they couldn’t operate at all.

Thankfully, the oral arguments show their position is likely to be rejected by a majority of the Court.

CWA Still Committed to the Principles of our Founding

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Precisely forty-two years ago, in 1978, Beverly LaHaye held the first Concerned Women for America (CWA) meeting in San Diego, California, to educate women about the threats presented by the so-called Equal Rights Amendment (ERA). More than 1,200 attended. It was the beginning of what would become the largest public policy organization for women in the nation.

CWA went on to have a resounding victory against the ERA both in the culture and the courtroom. But, believe it or not, some radical feminists never got over that resounding loss. They are still trying to revive the old, putrefied ERA corpse to this day.

CWA continues to stand in their way.

Just last week, we filed a brief in the United States District Court for the District of Columbia standing against illegal efforts to bypass precedent and keep the effort to pass the ERA alive. The brief, filed by Michael Farris, who was legal counsel for CWA back when we defeated the ERA the first time, and who is now the CEO and General Counsel for the Alliance Defending Freedom, explains to the court why the efforts to revive this effort violates the constitutional process.

Simply put, the ERA’s ratification deadline has come and gone. The effort is legally dead. The U.S. Congress gave the states seven years to ratify it, and they failed in that effort decades ago. To pass the ERA, they would need to start the process all over again.

Even the radically liberal Justice Ruth Bader Ginsburg has acknowledged as much, saying at a Georgetown Law School event that the effort to revive it comes “long after the deadline passed” and needs to start over. “I would like to see a new beginning,” she told the moderator Ninth Circuit Court of Appeals Judge M. Margaret McKeown, “I’d like it to start over.”

In our brief, we argue ERA activists themselves have acknowledged that their time has expired in numerous public statements. But now they seek to circumvent the constitutional process and revive the effort. Even their efforts to “remove the deadline,” acknowledge as much:

The Alice Paul Institute admits that “the ERA did not succeed in getting [sufficient] ratifications before the deadline.” The Feminist Majority Foundation explains that Congress must either “rescind the arbitrary timeline on ERA ratification … [or] pass the ERA again.” Likewise, the League of Women Voters of the United States currently urges its followers to “Tell Congress to remove the deadline so the ERA can cross the finish line!” … On its website, Equality Now tells supporters they “now must urge Senators to pass S.J. Res. 6, another joint resolution to eliminate the deadline. It is more important than ever to urge Senators to eliminate the original deadline!”

The ERA was bad policy then and is still bad policy today. It is why the American people rejected it. Feminists seek to use it to force their radical pro-abortion policies on the country, like finally getting our tax dollars to pay for abortions up to the moment of birth. Big abortion businesses like NARAL and Planned Parenthood have long argued that ERAs at the state level guarantee a right to taxpayer-funded abortions.

The president of the National Organization for Women argued, “The ERA would codify reproductive rights in the Constitution and greatly support low-income women who are the first to lose access to affordable birth control when family planning services are reduced.”

And today we know the ERA would be even worse for women, given the monumental fight in which we are engaged in an effort to protect women sports. Proponents of the ERA want to redefined the word “sex” in federal law opening the door for men who identify as women to hijack women’s rights, safety, and protections.

CWA is currently fighting in courts and legislatures around the country for the right of women in women’s shelter to prevent males from coming into their spaces, a development that could further aggravate the emotional and psychological pain of women who have suffered domestic abuse, rape, and even trafficking in some cases.

The bottom line is that the ERA continues to be a disaster for women and CWA is, once again, leading the fight against it to preserve the intrinsic and unique value of every woman. We won back then. And we will do so again.

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Political Justice Strikes Again—June Medical v. Russo

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If there was any doubt about what the U.S. Supreme Court Chief Justice John Roberts’ era at the Supreme Court was all about, they were erased this week as the Court delivered its opinion in June Medical L.L.C v. Russo. Chief Justice Roberts represents the era of political justice, and it is as ugly as it sounds. Constitutional principles and law are not paramount. The Court’s perception before the radical left is what matters.

In June Medical, the Chief Justice declared a law unconstitutional, not because he thought it was unconstitutional, but because he believes to be consistent is more important than being right. He wrote, “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.”

To be consistently wrong is a virtue in the Roberts’ era of political justice since it appeases the mob if only for a moment. Remember, this is a case dealing with abortion, a politically charged topic, and, as the Chief demonstrated in the Affordable Care Act (Obamacare) cases, he will consider much more than the law to save the Court’s reputation.

In the context of abortion, the liberals in the Court, along with the Chief Justice, will abandon impartiality and twist the law to fit the outcome they want. Justice Anthony Kennedy (the former justice who “wrote the book” on political justice) actually admitted as much in Gonzales v. Carhart, the Partial Birth Abortion case, where he confessed:

It is true this longstanding maxim of statutory interpretation has, in the past, fallen by the wayside when the Court confronted a statute regulating abortion. The Court at times employed an antagonistic ‘canon of construction under which in cases involving abortion, a permissible reading of a statute [was] to be avoided at all costs.’

Roberts perpetuates the shameful legacy with this decision, upholding an erroneous precedent for the sake of appeasing the insatiable abortion mob.

The left has his number. They know he is susceptible to the slightest criticism of the Court. So you cannot blame them for making sure the threats are forceful and consistent. Just recently, Sen. Sheldon Whitehouse submitted a reprehensible brief making all kinds of threats of “restructuring” the Court if they do not do as the left wants in controversial cases—gun control in that instance. He wrote, “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’”

Guess what happened in that case and in several others involving gun laws? You guessed it; the Court shied away from delving into the topic. “Don’t want to appear political,” you see? So goes the political justice chorus on every controversial case where they face the mob.

Need another recent example? See the Bostock/Harris Debacle.

Chief Justice Roberts joined the liberal bloc of the Court to say this case was just like the one they heard four years ago “Whole Woman’s Health.” But as the dissenters pointed out, this is merely a copout. The Court did not even give proper consideration to the third-party standing issue, where the Court’s unusual approval of abortionist asserting a constitutional right they do not have has been allowed to go forth. The conclusory claim of stare decisis (precedent) solves all in the plurality’s view.

As Justice Clarence Thomas pointed out, ultimately, “those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text.” Precedent didn’t really matter then.

Justice Thomas concluded, “The Constitution does not constrain the States’ ability to regulate or even prohibit abortion. This Court created the right to abortion based on an amorphous, unwritten right to privacy, which it grounded in the ‘legal fiction’ of substantive due process … As the origins of this jurisprudence readily demonstrate, the putative right to abortion is a creation that should be undone.”

Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh also wrote to highlight the plurality’s distortion of the facts and the law to reach their preferred policy position. “Today’s decision doesn’t just overlook one of these rules. It overlooks one after another,” wrote Justice Gorsuch in dissent. “To arrive at today’s result, rules must be brushed aside and shortcuts taken.”

Political justice strikes again, leaving many victims on its way. Not the least of which is true justice itself.

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The Bostock/Harris Debacle

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One of the most disappointing things about the recent Supreme Court decision on the definition of “sex” in Title VII of the Civil Rights Act of 1964 was the majority’s poor reasoning. The majority included Chief Justice John Roberts and Justice Neil Gorsuch, along with the four liberal justices (Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan).

Justice Neil Gorsuch, writing for the majority, does not dispute that the word “sex” in federal law means male and female. He indeed says, “The parties concede that the term ‘sex’ in 1964 referred to the biological distinctions between male and female.” Still, the majority argues that because homosexuality and transgenderism relate to “sex,” employment discrimination based on transgenderism or homosexuality is prohibited under the law.

The Court ignored the fact that Congress has considered and rejected protections explicitly based on those categories.

Simply put, the majority did what it wanted to do, not what the law demanded. Justice Samuel Alito, joined by Justice Clarence Thomas, filed a forceful dissent making the point. “There is only one word for what the Court has done today: legislation,” he wrote. Indeed.

This is extremely disappointing, especially in the case of Justice Gorsuch, because he had been up until now, a strong proponent of originalism or textualism, a legal philosophy that emphasizes sticking to the text of a statute. Unfortunately, he has shown now that he will deviate from that philosophy depending on the topic.

Justice Alito calls him out on it:

The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society.

Justice Brett Kavanaugh also saw the fallacy, writing in his own dissenting opinion, “Our role is not to make or amend the law. As written, Title VII does not prohibit employment discrimination because of sexual orientation.” It was a simple interpretive exercise unless a judge brings personal emotions into the mix.

One of the signs of the weakness of the majority’s argument was its dismissive attitude towards the opponents’ arguments. Despite the glaring problems with its interpretation, the majority simply declared that it was obvious that sexual orientation and gender identity were included. It was easy to see.  Justice Kavanaugh, again, showed how unserious the argument was: “Because judges interpret the law as written, not as they might wish it were written, the first 10 U. S. Courts of Appeals to consider whether Title VII prohibits sexual orientation discrimination all said no. Some 30 federal judges considered the question. All 30 judges said no, based on the text of the statute. 30 out of 30.”

They were all merely stupid, according to the majority. Same for Congress. No one intended to include sexual orientation or gender identity in the law. They debated whether to include it or not and rejected it. But the majority says they were just too naïve to know they were actually including it in the language.

File this decision among the worse in our history, right along with Obergefell v. Hodges, Roe v. Wade, and Dred Scott v. Sandford. The consequences will be devastating for our country. It will most certainly be used as a weapon against Christian conservatives. But this does not mean we allow it to be used in this way.

We must fight to limit its impact. The Court, indeed, as it always does when it knows it is doing wrong, tells us its impact is limited. Justice Gorsuch swears it will not affect religious liberty and that it does not involve other statues (like Title IX, in the women’s sports context). We must fight to make sure that is the case.

Right now, Concerned Women for America is in the middle of a big fight in regards to Title IX. We have two complaints with the Department of Education and are working on legislative fixes that could help mitigate the damage.

This case is thrusting us into a much bigger fight that is just beginning. A battle for reality. A struggle for truth. And as you know, Truth is on our side. Do not be discouraged. In the end, we will win.

This is not a time for timidity. It is time to redouble our efforts. Strengthen our resolve and stand on the Word of God. Join us in prayer for this fight and be part of the remnant of God in our country. There is power in the unity of the body of Christ (John 17:20-23).

Bostock – Harris Supreme Court Update

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The United States Supreme Court has released its decision in the Title VII cases Harris v. EEOC, Bostock v. Clayton County, and Altitude Express v. Zarda rewriting federal law in a raw act of judicial overreach.

We have seen this movie before. The Supreme Court rewriting federal law to appease political correctness is one of the most destructive developments in American jurisprudence. It always disappoints and brings more, not less, pain to our country. We can expect a similar type of legacy for today’s decision.

As Justice Alito plainly puts it in dissent: “There is only one word for what the Court has done today: legislation.” Which of course is a fundamental violation of the separation of powers set by our Constitution.

The majority betrays the Constitution and, Justice Gorsuch and Chief Justice Roberts betray the textualism they purport to support with this nonsensical decision that hurts women most of all. The protections based on “sex” in federal law were specifically enacted to protect women and strengthen justice, not threaten it because of the beautiful differences between males and females. But today, the Court erases that and envisions a world where fundamental truths can be twisted to mean whatever the “woke” culture of the times dictates.

CWA General Counsel Mario Diaz, Esq. and Doreen Denny, VP of Government Relations, have more on the potential dangers of this disastrous decision.

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The Abortion Industry Does Not Speak for Women

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This month, Concerned Women for America (CWA) filed an important amicus (friend of the court) brief in June Medical Services, LLC v. Gee at the United States Supreme Court standing up for the millions of pro-life women around the country who want to make sure the Justices know that the abortion industry does not speak for them.

Believe it or not, that is often what the abortion industry claims to do, with the blessing of the Court. Big Abortion has created a whole legal industry out of challenging any and all laws that seek to protect women by regulating the abortion procedure to make it safer for women. As predicted by Justice Powell in Singleton v. Wulff (428 U.S. 106, 119 (1976)), in abortion cases, the Court has “invit[ed] litigation by those who perhaps have the least legitimate ground for seeking to assert the rights of third parties”— in this case, women.

The same abortionists who spend millions of dollars fighting against a simple requirement to have admitting privileges at nearby hospitals so they can properly follow up with patients that experience complications during an abortion, claim before the courts to have a relationship with patients close enough to justify them representing women in court.

CWA’s brief highlights the research of Prof. Teresa Collett, J.D., the Director of the University of Saint Thomas Pro-Life Center, which surveys all cases since Roe involving federal challenges to abortion laws. The research reveals that “women have consistently challenged abortion-related laws related to public funding and laws requiring parental, spousal, or judicial consent prior to performance of an abortion while showing little or no appetite for attacking laws aimed at providing women with more information on abortion and its alternatives; safer, cleaner abortion facilities; and ethical, competent providers.”

“In the three years between 1973, when Roe v. Wade was decided, and 1976, when Singleton v. Wulff was decided, women were more likely than doctors, hospitals, or clinics to file challenges to abortion-related laws… Since 1976, [when the Court opened the door for abortionists to represent women’s interests,] there have been sixteen years in which there were no cases filed by women alone, and thirteen years in which they have brought only one” (citations omitted).

“From 1973 to 2019, women or girls have filed an annual average of 2.1 cases per year. In contrast, providers have filed an average of 9.1 cases per year; women and providers have joined in the same lawsuit in only 1.6 cases per year.”

“[T]here are almost no cases filed by women alone challenging conscience rights, informed consent requirements, fetal disposition laws, and provider regulations generally. This pattern suggests that women either generally support or at least do not oppose laws like the one before this Court today that are aimed at providing them with more information, safer, cleaner facilities, and more skilled providers” (citation omitted).

Given this research, the Court should reexamine its “third party standing” standards when it comes to abortion cases. It is just another area where, as Justice Anthony Kennedy candidly acknowledged, the “longstanding maxim[s] of statutory interpretation ha[ve], in the past, fallen by the wayside when the Court confronted a statute regulating abortion.” Third party standing should be presumptively denied in such cases, requiring abortion providers to prove their close relationship with the women they seek to represent in order to stand before the Court asserting women’s interests.

Oral arguments for the case have been set for 10:00 a.m. on Wednesday, March 4. Stay tuned for more information on our activities surrounding the arguments. As always, I will be at the Court to bring you an up-to-date report.

Heffernan v. City of Paterson in Brief

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FACTS: Petitioner, Jeffrey Heffernan, was a police officer for the City of Paterson, New Jersey. He alleges that his mother requested that he, on behalf of her, pick up a yard sign for the mayor’s principal opponent in the local mayoral election. While picking up this yard sign, Heffernan was observed by a fellow officer and was subsequently confronted by his supervisor regarding the yard sign. Heffernan told his supervisor that he was not politically involved, could not vote in the City of Paterson, and was picking up the yard sign on behalf of his mother. However, Heffernan’s office considered his activities to be “overt involvement in political activities” and Heffernan was demoted to a walking post.

PROCEDURAL HISTORY: The litigation began in 2006, when petitioner brought a § 1983 action against the City of Paterson, the mayor of Paterson, the Police Chief of Paterson, and the Police Director of Paterson in the United States District Court for the District of New Jersey alleging adverse actions against petitioner based on his off-duty conduct in complying with his mother’s request to obtain a yard sign for the mayor’s principal opponent in the local mayoral election, in violation of 42 U.S.C. § 1983 and petitioner’s fundamental First Amendment rights.

After the trial concluded in April 2009, the jury concluded that the mayor of Paterson and the Police Chief of Paterson had retaliated against the plaintiff due to his exercise of his First Amendment right to association, but exonerated the city of Paterson, who had filed and won a motion for summary judgment. The motion alleged that there was no evidence of Heffernan associating himself with the candidate at issue, which Heffernan himself admitted, causing there to be no evidence of a violation of free association. The jury found that the mayor of Paterson and the Police Chief of Paterson proximately caused the petitioner injury and awarded the petitioner compensatory damages in the amount of $75,000 and punitive damages in the amount of $30,000.

However, after the jury’s decision, the district court judge retroactively recused himself, claiming he had become aware of a conflict of interest. The case was reassigned and set for retrial. On retrial, the district court judge granted summary judgment to defendants as to the First Amendment free speech claim. The petitioner appealed.

The U.S. Court of Appeals for the Third Circuit initially reversed and remanded the district court’s ruling, holding that the successor judge’s denial of officer’s request for permission to file an opposition to defendants’ summary judgment motion was an abuse of discretion and that the successor judge should have addressed the free association claim

On remand, the district court held that the petitioner did not engage in actual First Amendment speech, the petitioner’s conduct could not be considered expressive, perceived First Amendment speech or expression could not form basis of retaliation claim, the petitioner did not have claim for aiding and abetting speech, freedom of association claim was properly in front of the court, and that claim failed on the merits, absent retaliation in response to actual or perceived political affiliation. The petitioner once again appealed.

The U.S. Court of Appeals for the Third Circuit affirmed the district court’s ruling, holding that its prior opinion did not preclude district court from considering city’s motion for summary judgment on remand, officer’s demotion did not violate Free Speech Clause, and officer’s demotion did not violate his right to free association

The United States Supreme Court granted certiorari on October 1, 2015.

ISSUE: Does the First Amendment prohibit the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate?

ORAL ARGUMENTS: Oral arguments for this case were completed on January 19, 2016. During oral arguments, this case was described as “bizarre” multiple times, even once by Justice Antonin Scalia

Chief Justice John G. Roberts, Jr., echoed the holdings of the lower courts during the oral arguments by saying, “I’m not sure how he can say his freedom of speech has been abridged.” Justice Antonin Scalia further echoed the lower court’s holdings by saying, “Your client was neither speaking nor association. So how could he possibly have a cause of action under the First Amendment?”

However, Justice Elena Kagan expressed concern during the oral arguments through the use of a hypothetical. Her hypothetical supposed that every agnostic or uninterested government worker was fired when their bosses made it their mission to replace them with politically active workers who have views aligned with their own. She explained her concern to be that government workers might have no constitutional protection if their bosses decided to engage in this type of activity. Justice Ruth Bader Ginsburg seemed to agree with Justice Kagan, claiming that it defied common sense to protect those who politically speak out from being demoted but not to protect those who do not actually politically speak out but are misconstrued as doing so.

DISCUSSION: In this Supreme Court case, the petitioner contends that the First Amendment not only grants individuals the right to speak freely but also prevents the government from trying to control people’s beliefs. In essence, the government should not be able to take adverse action against an employee for perceived association, regardless of whether or not that association actually occurred.

And, on the other side, the respondents are arguing that, “by definition, the government cannot ‘abridge’ a ‘right’ of an employee who does not even seek to exercise it.” Basically, they are saying that the government’s motivation in punishing petitioner is completely irrelevant since the petitioner admitted to holding the sign for his mother and that he was not explicitly exercising his own right to association.

The result of this case will be especially relevant for CWA due to the fact that its ruling will affect millions of government workers’ free-speech rights under the First Amendment. This type of case could potentially occur in future situations with direct relation to one of CWA’s seven core issues: Religious Liberty.