Case Vault Archives

Jun 30 2022

No Freedom Without Prayer

By Mario Diaz, Esq. | Case Vault, Legal, News and Events, SCOTUS | No Comments

We are a nation born of the radical idea that “all men are created equal” and “endowed by their Creator with certain unalienable Rights.” That is why liberty and freedom flourished in our nation against all odds. That fundamental appeal to the authority of our Creator, above and beyond earthly governments, levels the playing field among selfish human interests.

It is a plea to a higher authority above raw human power, and it necessarily affirms every person’s intrinsic, equal value. It stands squarely against the inevitable attempts of our broken nature to establish one class of individuals above another. These attempts have existed throughout time. They were undoubtedly palpable at the nation’s founding. We still have them today. And they will continue.

Eternal vigilance is a prerequisite for sustained freedom in this world.

The recent religious liberty win in Kennedy v. Bremerton School District is an excellent example of the efforts needed to preserve liberty in America in the coming years. Increased hostility toward Christ and His teachings is leading our culture to some bizarre conclusions that will devastate our future if they are allowed to take root.

At the same time that our culture insists on promoting the early sexualization of our children in schools, with drag queens promoted as the best role models, here, in this case, a Christian coach had to fight all the way to the Supreme Court to defend his unalienable right to pray silently after school football games. He is apparently not the type of role model our kids need.

Drag queens, fantastic role models; humble, praying, Christian coaches, horrible-no-good-intolerable role models, according to today’s woke school officials.

Like Justice Neil Gorsuch, writing for the majority to uphold Coach Kennedy’s First Amendment rights, pointed out, in the system’s view, “the only acceptable government role models for students are those who eschew any visible religious expression.”

Thankfully, the United States Supreme Court has stopped the targeting of our Christian faith for now. However, the attitude that persisted in this injustice for almost seven years against Coach Kennedy still dominates our public educational institutions. And our federal courts, let’s not forget that. The targeting of Coach Kennedy was approved by both the district and the appellate courts.

We have so distorted the Constitution throughout the years that public officials actually believed, and again, the lower courts went right along, “not only that it may prohibit teachers from engaging in any demonstrative religious activity, but that it must do so in order to conform to the Constitution.”

This is, of course, absurd given our nation’s founding, but anti-Christian forces have used the so-called “separation of church and state” extra-constitutional mantra so often for so long that this misconception of the First Amendment in schools is widespread. Here the Court helps clarify that this misunderstanding of law cannot shield school officials from their intolerant practices. “[T]he only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech,” the Court wrote. “The Constitution neither mandates nor tolerates that kind of discrimination.”

Religious speech is speech. It should be afforded all the constitutional protections traditionally applied to any other speech. Instead, for years, it has been particularly targeted because it is religious. This boggles the mind when one considers that, if anything, religious expressions were singled out in the Constitution as perhaps worthy of heightened protection. As the Court wrote:

In the name of protecting religious liberty, the District would have us suppress it. Rather than respect the First Amendment’s double protection for religious expression, it would have us preference secular activity. Not only could schools fire teachers for praying quietly over their lunch, for wearing a yarmulke to school, or for offering a midday prayer during a break before practice. Under the District’s rule, a school would be required to do so.

That double protection the Court references was also a crucial part of the opinion because, for years, some have tried to pit the free exercise and the establishment clause against each other, but instead, “the Clauses have ‘complimentary’ purposes, not warring ones where one Clause is always sure to prevail over the others.”

The school district here thought it needed to choose between the two. The Court explained: “[T]the District effectively created its own ‘vise between the Establishment Clause on one side and the Free Speech and Free Exercise Clauses on the other,’ placed itself in the middle, and then chose its preferred way out of its self-imposed trap.”

The school officials were simply mistaken, as they are so often. “And in no world may a government entity’s concerns about phantom constitutional violations justify actual violations of an individual’s First Amendment rights.” This should have been apparent, especially for the judges reviewing the cases. “We are aware of no historically sound understanding of the Establishment Clause that begins to ‘mak[e] it necessary for government to be hostile to religion’ in this way,” the Court wrote. There is none. The courts below did not cite one either.

Instead, they relied on the infamous Lemon test, which “called for an examination of a law’s purposes, effects, and potential for entanglement with religion.” The test has long been criticized for fundamentally distorting the original meaning of the First Amendment.

Concerned Women for America (CWA) has long joined that chorus of criticism, asking the Court to abandon it. As the Court held, “the ‘shortcomings’ associated with this ‘ambitiou[s],’ abstract, and ahistorical approach to the Establishment Clause became so ‘apparent’ that this Court long ago abandoned Lemon and its endorsement test offshoot.”

Lemon is dead. Justice Gorsuch’s straightforward treatment leaves no doubt for lower courts. “In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.'”

Under that standard, it is clear that “in this case Mr. Kennedy’s private religious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion.”

Of course, some will still find offense at any public expression of faith—especially the Christian faith. But “[o]ffense. . . does not equate to coercion,” and the Court puts that “hecklers veto” to rest masterfully.

Naturally, Mr. Kennedy’s proposal to pray quietly by himself on the field would have meant some people would have seen his religious exercise. Those close at hand might have heard him too. But learning how to tolerate speech or prayer of all kinds is “part of learning how to live in a pluralistic society,” a trait of character essential to “a tolerant citizenry.”

Ordinarily, the Court would spend some time describing the different standards of review, but this case was so clear that the Court said, “it does not matter which standard we apply. The District cannot sustain its burden under any of them.”

This is a strong opinion that we hope can help lower courts and even school officials better understand the constitutional burdens they bear when dealing with sincere religious exercises going forward. They would be wise to train their instincts towards accommodation.

As the Court concluded, “Respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head.” Well said.

Jun 30 2022

Super-Duper Supreme Court Term

By Mario Diaz, Esq. | Case Vault, Legal, SCOTUS | No Comments

Remember when some tried to sell Roe as “super-duper” precedent? Well, it didn’t work. Roe is gone (all praise be to God!), but we have been indeed left with something “super-duper”—this Supreme Court term. It was just superb.

It all starts with Dobbs, of course (and that would be more than enough to celebrate), but it went beyond that, and I wanted to take a moment and celebrate with you each victory by presenting to you a short summary of the term’s most amazing top 5 wins!

Dobbs v. Jackson Women’s Health Organization— The Court declared unequivocally that the United States Constitution does not and has never conferred a right to abortion. Therefore, the Court spent much time discussing the grave errors in the Roe and Casey framework before formally overruling them and returning the authority to states to be free to protect unborn life in the best way they see fit.

Whole Woman’s Health v. Jackson— Just before the Dobbs case was argued, the Court heard a challenge to the Texas Heartbeat Act. The state law prohibits most abortions after a heartbeat can be detected through an ultrasound, but it has no state law enforcement mechanism, only private enforcement action. The pro-abortion side wanted the Supreme Court to intervene to stop the law, but the Court correctly refused to intervene. The practical result was that almost 8,000 babies were saved in the first three months after the law went into effect.

Shurtleff v. City of Boston— A unanimous Court here agreed that the First Amendment rights of Harold Shurtleff, the director of Camp Constitution, were violated by the city of Boston when it refused to allow him to fly the Christian flag at a public pole that the city had made available for private groups to fly different kind of flags indiscriminately.

Carson v. Makin— The Court held Maine’s “nonsectarian” requirement for generally available tuition assistance payments to parents who lived in a district that did not operate a secondary school of their own violated the parent’s First Amendment free speech rights. Parents are free then to use the money to send their kids to any school they want, treating all schools, secular or religious, equally, instead of targeting religious schools for discrimination.
Finally, Kennedy v. Bremerton School District— the Coach Kennedy case, as most of you know it. Coach Kennedy was unjustly fired for silently praying at midfield after football games. The Supreme Court has now made official the fact that he was fired, not only unjustly but unconstitutionally. What a sweet victory for this man and his family, who have fought for almost seven years to protect our religious liberty rights. The Court held that both the free exercise and free speech clauses of the First Amendment protect an individual’s right to engage in a personal religious observance. The Court said, “The Constitution neither mandates nor permits the government to suppress such religious expression.”

Can we stop and thank God for His goodness, mercy, and grace? All of these are part of just one Supreme Court term. We can expect more! The Constitutional imbalance we have been living (and suffering) under is slowly being straightened back to a more faithful and impartial application of justice. We are sure to reap the blessings of these actions for decades to come.

May 02 2022

Boston Violates First Amendment by Targeting Christian Flag

By Mario Diaz, Esq. | Case Vault, LBB, Legal, News and Events | No Comments

All nine justices of the United States Supreme Court agree in Shurtleff v. City of Boston. The city violated the First Amendment rights of Harold Shurtleff, the director of Camp Constitution, by refusing to allow him to fly the Christian Flag at a public pole where the city allowed private groups to fly their flags indiscriminately.

“The most salient feature of this case is that Boston neither actively controlled these flag raisings nor shaped the messages the flags sent,” wrote Justice Stephen Breyer in his majority opinion as the Court concluded what Boston was engaging in was not government speech. “Boston told the public that it sought ‘to accommodate all applicants’ who wished to hold events at Boston’s ‘public forums.’” Except for those pesky Christians.

Thankfully, the Court 9-0 (though using different rationales) declared, “Boston’s refusal to let petitioners fly their flag violated the Free Speech Clause of the First Amendment.” The Court correctly stated, “When the government does not speak for itself, it may not exclude private speech based on “‘religious viewpoint’; doing so ‘constitutes impermissible viewpoint discrimination.’”

Breyer’s majority opinion was joined by Chief Justice Roberts and Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett. They were also three concurring opinions. One by Justice Kavanaugh, a second by Justice Alito joined by Thomas and Gorsuch, and a third by Justice Gorsuch joined by Justice Thomas.

Justice Kavanaugh, concurring, made clear this case only got to the Supreme Court “because of a government official’s mistaken understanding of the Establishment Clause.” We should also add that many judges share the mistaken view, also. But as Kavanaugh writes, “Under the Constitution, a government may not treat religious persons, religious organizations, or religious speech as second-class.”

Justice Alito’s concurrence agrees with the Court’s ultimate conclusion but disagrees with the majority’s analysis. And with good reason. Justice Alito rightly points out that some of the “tests” the majority uses to answer the question here, like “the extent to which the government has actively shaped or controlled expression,” can actually be used by bad actors to discriminate against those with whom it disagrees. But that, too, would be an impermissible violation of the First Amendment.

Justice Alito smartly advocates for a more precise and robust definition of government speech, which, after all, is the only organism restricted by the First Amendment. “Government speech,” he writes, “is thus the purposeful communication of a governmentally determined message by a person exercising a power to speak for a government.” Furthermore, after establishing that government speech is at issue, “the government must establish it did not rely on a means that abridges the speech of persons acting in a private capacity.” This is the type of clear definitional guidelines that will help judges around the country administer justice in a much fairer way. Let us hope Justice Alito’s test finds wide acceptance in the years to come.

Finally, Justice Gorsuch writes a concurring masterpiece on what is known as the Lemon test. This is an approach that Concerned Women for America has asked the Court to overturn on many occasions. As he wrote, “Lemon ignored the original meaning of the Establishment Clause, it disregarded mountains of precedent, and it substituted a serious constitutional inquiry with a guessing game.”

The historical discussion especially is worthwhile in Gorsuch’s concurrence; I commend it to you. Here is a taste (citations omitted):

As a close look at these hallmarks and our history reveals, “[n]o one at the time of the founding is recorded as arguing that the use of religious symbols in public contexts was a form of religious establishment.” For most of its existence, this country had an “unbroken history of official acknowledgment by all three branches of government of the role of religion in American life.” In fact and as we have seen, it appears that, until Lemon, this Court had never held the display of a religious symbol to constitute an establishment of religion. The simple truth is that no historically sensitive understanding of the Establishment Clause can be reconciled with a rule requiring governments to “roa[m] the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine.” Our Constitution was not designed to erase religion from American life; it was designed to ensure “respect and tolerance.”

It is a critical discussion that accentuates his clear thinking on religious liberty issues.

This is a great win that envisions even greater protections for religious freedom for decades to come—a great development for all Americans regardless of religious belief.

Jan 13 2022

Sensible Supreme Court Opinion Halts Vaccine Mandate

By Mario Diaz, Esq. | Briefs, Case Vault, Gorsuch, LBB, Legal, News and Events | No Comments

In a “per curiam” opinion, meaning a decision authored by the entire Court, instead of a single justice, the United States Supreme Court granted a stay of the Occupational Safety and Health Administration (OSHA) vaccine mandate for employers with 100 or more workers. The rule, therefore, will not go into effect until the case goes through the entire appellate process.

But the Court’s division can be further assessed by the fact that the three more liberal justices—Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan— dissented from the opinion, and Justices Clarence Thomas and Samuel Alito joined a very strong concurring opinion by Justice Neil Gorsuch.

The Court’s sensible approach to the issue simply noted that OSHA’s “emergency standard,” which it used here and which circumvents the usual public notice and comment accountability processes, should be used with precision and caution. Instead, the Court notes that the OSHA rule which applies to 84 million workers “requires workers receive a COVID-19 vaccine, and it pre-empts contrary state laws,” works as “a blunt instrument.” It found the exemptions presented (for employees who work outside 100 percent of the time or who work exclusively outdoors, for example) were “largely illusory.” The rule “draws no distinctions based on industry or risk of exposure to COVID-19.”

The Court found those objecting to the rule were “likely to succeed on the merits of their claim that [OSHA] lack[s] authority to impose the mandate.”

In doing so, the Supreme Court returns power to the states and the people, where it belongs, because the vaccine mandate goes way beyond establishing a simple workplace standard, as the agency is charged to enact, and into establishing nationwide public health policy. Remember, OSHA has never in its history done anything like this.

And here is where Justice Gorsuch’s concurrence is extremely helpful because it acknowledges what most Americans understand. This administrative mandate is trying to accomplish what President Joe Biden could not get done through the people’s representatives. He is trying to enact something Congress up until now has rejected.

If the people want a vaccine mandate, they could easily demand it from Congress. The reality is most people do not. In fact, the President’s approval numbers have been steadily declining. The latest numbers show him at an all-time low of 33 percent. Fifty-five percent disapprove of his handling of the pandemic.

That is why President Biden had to work through OSHA to establish this national vaccine mandate. He lacks the necessary support to do it otherwise.

Justice Gorsuch wrote:

The central question we face today is: Who decides? No one doubts that the COVID–19 pandemic has posed challenges for every American. Or that our state, local, and national governments all have roles to play in combating the disease. The only question is whether an administrative agency in Washington, one charged with overseeing workplace safety, may mandate the vaccination or regular testing of 84 million people. Or whether, as 27 States before us submit, that work belongs to state and local governments across the country and the people’s elected representatives in Congress.

That power belongs to the people, said the Supreme Court today—to those most immediately accountable to them. The concurrence noticed that “a majority of the Senate even voted to disapprove OSHA’s regulation.” Therefore, it seemed reasonable to conclude “the agency pursued its regulatory initiative only as a legislative ‘work-around.’”

With this decision, the Court re-affirms what it has said in the past, that major questions of doctrine with broad effects on the public are left to the people’s elected representatives, and that they must make it very clear when they are giving such broad power to an agency. The concurrence said this rule, known as the “major questions doctrine”:

[E]nsures that the national government’s power to make the laws that govern us remains where Article I of the Constitution says it belongs—with the people’s elected representatives. If administrative agencies seek to regulate the daily lives and liberties of millions of Americans, the doctrine says, they must at least be able to trace that power to a clear grant of authority from Congress.

And even then, the concurrence suspects that such an intrusive mandate brought through the backdoor of an administrative agency might run afoul of the “nondelegation doctrine,” which “ensures democratic accountability by preventing Congress from intentionally delegating its legislative powers to unelected officials.”

Justice Gorsuch concludes:

On the one hand, OSHA claims the power to issue a nationwide mandate on a major question but cannot trace its authority to do so to any clear congressional mandate. On the other hand, if the statutory subsection the agency cites really did endow OSHA with the power it asserts, that law would likely constitute an unconstitutional delegation of legislative authority.

Whatever your view of the COVID vaccine in general, it should be encouraging to all to see the Court protecting the Constitutional structures that guard our liberties in this way. As Justice Gorsuch put it, “The question before us is not how to respond to the pandemic, but who holds the power to do so.”

The rule will be halted for now, but the case will continue. As we await further proceedings let us pray for a wiser, more honest, and unifying approach to fighting the pandemic going forward.

Dec 01 2021

Three Takeaways from Today’s Dobbs Oral Arguments

By Mario Diaz, Esq. | Case Vault, Dobbs, Legal, News and Events, Sanctity of Life | No Comments

Today, the United States Supreme Court heard oral arguments on the most important pro-life case of our lifetime: Dobbs v. Jackson Women’s Health Organization. As hundreds of pro-life supporters rallied outside the courtroom (outnumbering the other side by a considerable margin!), inside the Justices heard arguments from the state of Mississippi, the Jackson abortion clinic, and the United States Solicitor General.

Here are the top three takeaways:

1- Institutional Legitimacy was the Liberal Side’s Theme

Justice Stephen Brayer led the charge for the liberal side of the Court on this point. He quoted Casey and argued that to overturn Roe and Casey “Would subvert the Court’s legitimacy.” Justice Sonia Sotomayor, who blatantly and embarrassingly acted as an advocate for the pro-choice side instead of a justice of the Supreme Court, suggested the Court would not survive “the stench” of overturning Roe.

She’s obviously grown used to the fetor of more than 60 million babies aborted since 1973.

In the liberal side’s warped view, to overturn Roe would be a political action, but to impose abortion on demand on all Americans was not. They kept expressing concerns over the politicization of the Court as if it were not seen as activist in favor of abortion right now.

Mississippi’s State Solicitor General Scott Grant Stewart made clear that Roe and Casey had no grounding in the constitutional text and that the continued upholding of erroneous precedent is in fact more of a threat to the Court’s legitimacy…

Click here to read the rest of Mario’s exclusive Substack column. And be sure to subscribe below to never miss one of his posts again!

Nov 24 2021

Indefensible Roe – The Legal Track

By Mario Diaz, Esq. | Case Vault, Dobbs, Legal, News and Events, RBG, Sanctity of Life, SCOTUS | No Comments

As that great bulwark of honesty Buddy the elf would say, Roe “sit[s] on a throne of lies.” This series will expose many of them in the spiritual, scientific, cultural, moral, and policy realm. But we start this endeavor with the most pressing deception as far as it concerns the U.S. Supreme Court’s upcoming considerations of the Dobbs v. Whole Women’s Health Organization case: the legal one.

It is a plain statement of fact that the U.S. Constitution has nothing to say about abortion. Zero, zip, zilch, nada. In fact, the fallacy of Roe is so deep, that the Court did not just invent the right to abortion, it actually based its decision to invent it on another “right” that appears nowhere in the Constitution. In an earlier case (Griswold v. Connecticut), the Court had “recognized” a new right to privacy that it now magically expanded to cover the right to abortions.

The Court is not even sure where this right to privacy comes from; it recognizes different theories. But wherever it came from, it is surely meant to cover abortion; it promises us. Here is how Justice Harry Blackmun, who shamefully wrote the Roe majority opinion, put it:

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.

And just like that, 185 years after the Constitution was officially ratified on June 21, 1788, the Court gives birth to a new right to abortion with no legal underpinning whatsoever…

Click here to read the rest of Mario’s exclusive Substack column. And be sure to subscribe below to never miss one of his posts again!

Nov 19 2021

Indefensible Roe — An Introduction

By Mario Diaz, Esq. | Case Vault, Dobbs, LBB, Legal, News and Events, SCOTUS, Substack | No Comments

Dobbs v. Jackson Women’s Health Organization, the Mississippi case where abortionists are challenging the state’s “Gestational Age Act,” should force the United States Supreme Court to reevaluate its disastrous abortion jurisprudence.

Because Mississippi’s law places strict limits on abortion after 15 weeks, it runs straight up against the Court’s nonsensical and arbitrary “viability” pronouncement which has somewhat guided the Court through its oversight of more than 60 million babies aborted since 1973. In Roe v. Wade, the Court invented a right to abortion out of nothing and established limits based on an arbitrary trimester framework, but it also recognized a state’s interests in the health of mothers and “potential life,” as it cunningly termed babies in the womb. Only when those state interests become “compelling” are states able to regulate abortion, perhaps even ban it. The Court explained:

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

The Court’s mushy pronouncement ensured it would continue to act as a super-legislature, second-guessing virtually every state attempt to protect life. Therefore, we continue to see a never-ending series of cases at the Supreme Court with citizens from different states trying to assert their interests in the health of mothers and protecting children in the womb…

Click here to read the rest of Mario’s exclusive Substack column. And be sure to subscribe below to never miss one of his posts again!

Nov 12 2021

On the Maine Vaccine Mandate Case Before the U.S. Supreme Court

By Mario Diaz, Esq. | Case Vault, LBB, Legal, News and Events, SCOTUS | No Comments

In a recent emergency application before the United States Supreme Court, the justices declined an appeal from Maine health care workers to stop the enforcement of a vaccine mandate that did not contain a religious exemption. Though certainly disappointing, those concerned with these oppressive vaccine mandates should not read much into the denial, and indeed should be encouraged by Justice Neil Gorsuch’s excellent discussion of the legal principles involved which Justices Clarence Thomas and Samuel Alito joined.

It was disappointing that Justices Amy Coney Barrett and Brett Kavanaugh declined to hear the case, but we should note their denial was a technical one as to the timing of the appeal. “[D]iscretionary consideration counsels against a grant of extraordinary [emergency] relief in this case, which is the first to address the questions presented,” wrote Justice Barrett. Practically all she wrote in her one-paragraph concurring opinion.

The bottom line is that the Supreme Court will end up taking one of the many cases challenging these vaccine mandates soon, and I am extremely confident that, at the very least, a religious exemption will be required.

Any government or private entity taking action against a worker’s request for religious accommodation does so at their own peril, putting itself at serious risk of legal liability once these cases work themselves out which will not take long, given how aggressively the strong arm of government is seeking to assert itself.

Not even a week after the Supreme Court’s denial in this case, the United States Court of Appeals for the Fifth Circuit blocked the Biden administration’s latest mandate. “Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court,” the per curiam (by the court) noted.

There are a lot of moving parts in this battle, so be patient and continue to pray for the judges, the justices, and the attorneys involved. The Biden mandate is to take effect on January 4, so the one thing that we can be sure of is that it will move fast.

I commend to you Justice Gorsuch’s exceptional dissent from the denial of the application for injunctive relief against Maine’s vaccine mandate which demonstrates why we can be confident that religious liberty will win. The government must treat religious exceptions on the same level as any other exemptions. They cannot target religious exemptions as less worthy of protection. “Maine has so far failed to present any evidence,” wrote Justice Gorsuch, “that granting religious exemptions to the applicants would threaten its stated public health interests any more than its medical exemption already does.”

He concluded:

Where many other States have adopted religious exemptions, Maine has charted a different course. There, healthcare workers who have served on the front line of a pandemic for the last 18 months are now being fired and their practices shuttered. All for adhering to their constitutionally protected religious beliefs. Their plight is worthy of our attention.

Indeed. This is why the Court will have to address the issue in the not too distant future. Continue to pray.

Nov 05 2021

Texas Abortion Law Cases at the Supreme Court—What was it All About?

By Mario Diaz, Esq. | Case Vault, Legal, News and Events, Texas | No Comments

On Monday (November 1, 2021), the Supreme Court of the United States (SCOTUS) heard oral arguments in two cases (Whole Woman’s Health v. Jackson, and United States v. Texas) challenging the Texas Heartbeat Act (S.B. 8). The law prohibits most abortions after a heartbeat can be detected through an ultrasound.

Other laws around the country have tried to do this only to run afoul of SCOTUS’ arbitrary viability line which makes a law unconstitutional in the Court’s view.

The Texas Heartbeat Act is unique because it explicitly prohibits any state law enforcement from enforcing the law. Instead, it allows any private citizen to bring a civil suit against anyone who performs or helps someone obtain an illegal abortion.

Because of this, abortionists cannot simply sue state officials, as they usually do to prevent the implementation of this law. And that is the question before the Court in Whole Woman’s Health v. Jackson, “whether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.”

This has confused many people because popular media outlets love to fixate on the “war on women” and the abortion narrative. But I hope you can see by the question presented how the issue before the Court is not really about abortion. We have a fundamental disagreement about abortion being a “constitutional right,” obviously. It is not. Still, the legal question, as presented, could be about any other constitutional right.

This is why even some of the more constitutionally faithful justices expressed concerns about the law. Justice Brett Kavanaugh asked about an amicus brief filed by the Firearms Policy Coalition that argued that a similar law would be used against Second Amendment rights in liberal states. He said, “[I]t could be free speech rights. It could be free exercise of religion rights. It could be Second Amendment rights. If this position is accepted here, the theory of the amicus brief is that it can be easily replicated in other states that disfavor other constitutional rights.”

Justice Clarence Thomas asked about the concern that those bringing the suit have apparently suffered no injury, even though they will be awarded monetary relief. “[U]sually, when you think of traditional torts, there is a duty, there’s an injury to the individual. It’s a private matter. There is no requirement here that there be an injury to the plaintiff.” To this, the Texas Solicitor General Judd Stone rightfully answered that the Texas Supreme Court does, in fact, require an injury in fact, even if none is explicitly asserted in the text of the law. But Justice Thomas struggled to find the injury, “So what would that injury be in this — under S.B. 8, if it’s an injury in fact?”

Those attacking the law had serious difficulty making their case, too. SCOTUS has strong precedent which restricts a federal court’s power to enjoin state judges. That is why the pro-abortion side sought to enjoin state law clerks. However, this seemed artificial and unenforceable ultimately. Justice Samuel Alito expressed the skepticism this way:

“[A] clerk performs a ministerial function. Somebody shows up with a complaint, wants to file a complaint, and assuming the formal requirements are met, the clerk files the complaint. The clerk doesn’t have the authority to say, you can’t file this complaint because it’s a bad complaint. I mean, what if the judge, the presiding judge in a particular jurisdiction, said, okay, fine, you don’t want the clerks filing these things, if anybody shows up with an S.B. 8 complaint, call me and I’ll docket it myself? Then what?”

In United States v. Texas, the question was related, but it had to do with the federal government’s power to obtain injunctive or declaratory relief against state officials to stop the enforcement of a law, like the Texas Heartbeat Act. And if the effort of the Texas abortionists to obtain such a relief is difficult, this one seems even more problematic under the federalism principles embodied in the U.S. Constitution.

Justice Neil Gorsuch stressed the unprecedented nature of the United States’ request by pointing out it would be the first time in the nation’s history that the Court would grant such a request:

Justice Gorsuch: “General, are you aware of a precedent that permits an injunction against all persons in the country or the world, the cosmos, who bring suit?

U.S. Solicitor General Elizabeth Prelogar: No, Justice Gorsuch.

There are novel legal concepts to consider in both these cases for sure, but ultimately this is a problem of SCOTUS’ own making by its underlying, unconstitutional overreach when it comes to abortion. Texas and other states simply continue to try to find ways to save babies within the limits imposed by law. The Texas Heartbeat Act is said to have been saving 150 babies a day, thousands by now. And that is a good thing, no matter how you look at it.

That is why Concerned Women for America (CWA) stood with the people of Texas and Attorney General Ken Paxton, who has been a champion for life, on the steps of the Supreme Court on the day of oral arguments. And we will continue to do so until the day the Court acknowledges the error of its ways and restores justice for the unborn. We are praying that day is very close.

Jul 02 2021

High Court Term Closes with Momentous First Amendment Defense, A CWA Win

By Mario Diaz, Esq. | California, Case Vault, News and Events, SCOTUS | No Comments

This week, on the last day of the Court’s 2020 term, the United States Supreme Court gave us a significant First Amendment victory in Americans for Prosperity Foundation v. Bonta, and Thomas More Law Center v. Bonta. In a 6-3 decision authored by Chief Justice John Roberts, the Court reversed the Ninth Circuit Court of Appeals and remanded the cases, concluding, “California’s disclosure requirement is facially invalid because it burdens donors’ First Amendment rights and is not narrowly tailored to an important government interest.”

The decision is a major victory for the First Amendment, for us at Concerned Women for America (CWA), since we submitted a brief supporting the Petitioners, but more importantly, it is a victory for freedom.

California’s requirement for charities to file major donor lists was a blatant attempt at political intimidation, which would have been exploited maliciously in today’s cancel culture environment. Thankfully, the Supreme Court recognized it for what it was and declared it unconstitutional.

There was some disagreement among the justices about the standard of review to be applied in this case. The Chief Justice argued for an “exacting” scrutiny standard, which would be lower than the traditional “strict” scrutiny, which is the highest the Court applies. In the case of an exacting scrutiny standard, the law does not have to be the “least restrictive” means for the government to accomplish its purposes, but it does mean that it has to be “narrowly tailored.”

This law was blatantly not “narrowly tailored,” so it was declared unconstitutional.

Though we agree with Justice Thomas, who argued in his concurrence that in review of a law that so blatantly burdens First Amendment rights, the higher strict scrutiny standard should apply; Justices Alito and Gorsuch were right in writing that this law was so egregious it fails either standard.

Justices Sotomayor, Breyer, and Kagan dissented.

The Court recognized that the law “casts a dragnet for sensitive donor information from tens of thousands of charities each year, even though that information will become relevant in only a small number of cases.” Juxtapose that with the risks involved in today’s day and age, and the danger is hard to ignore.

“The petitioners here, for example, introduced evidence that they and their supporters have been subjected to bomb threats, protests, stalking, and physical violence,” the Chief Justice wrote. And continued, “Such risks are heightened in the 21st century and seem to grow with each passing year, as ‘anyone with access to a computer [can] compile a wealth of information about’ anyone else, including such sensitive details as a person’s home address or the school attended by his children.”

This recognition is significant. Cancel culture is a cancer that has overtaken our culture by storm, and the Court needs to recognize it here. California, of course, tried to downplay this issue at oral arguments, boasting of its intent to keep the information private, even when the evidence showed they had violated that privacy in multiple ways.

You are sure to hear this ruling reported as a “conservative Court” acting on behalf of conservatives. A New York Times tweet read, “Breaking News: The Supreme Court rejected California’s requirement that charities report the identities of major donors, siding with conservative groups who said the disclosures could lead to harassment.” This is fake news, as we’ve come to expect. They are manipulating this decision for political gain.

The reality is this was an unusual case where most charitable organizations from both the left and the right were in agreement, standing against California’s radicalism. As the Court noted, “The gravity of the privacy concerns in this context is further underscored by the filings of hundreds of organizations as amici curiae in support of the petitioners. Far from representing uniquely sensitive causes, these organizations span the ideological spectrum, and indeed the full range of human endeavors.”

Yes, this was the rare case where CWA stood alongside the American Civil Liberties Union and many other organizations, conservative and liberal. Good to see the Court take notice and concluding, “the Attorney General’s disclosure requirement imposes a widespread burden on donors’ associational rights. And this burden cannot be justified on the ground that the regime is narrowly tailored to investigating charitable wrongdoing or that the State’s interest in administrative convenience is sufficiently important.”

Jun 25 2021

SCOTUS Strikes Down Philadelphia’s Anti-Christian Policy

By Mario Diaz, Esq. | Case Vault, Legal, News and Events, SCOTUS | No Comments

Catholic Social Services (CSS) has been serving the underprivileged children of Philadelphia for over two centuries. The organization serves children through adoption and foster care services as an outpouring of the love embodied in the tenets of the Christian faith.

This is a problem for the Left.

Today’s secular humanist Left is adamant about crushing dissenting views. All people and organizations that refuse to publicly affirm support for LGBTQIA+ desires must be “canceled”—ostracized, isolated, punished, re-educated. Christians, in particular, are a nuisance. They continue to believe in Creation as told in Scripture. They believe every person has intrinsic value as created in the image of God (Genesis 1:27). That’s why they just will not shut up about the injustice of abortion.

Christians insist that God created us male and female (Genesis 1:27, Matthew 19:4) and that God instituted marriage and the family as a foundational institution (Genesis 2:24) that reflects the most sacred relationship between Christ and His Bride, the Church (Ephesians 5:31,32). They dare to promote that children honor both their mother and father (Exodus 20:12, Ephesians 6:2). They insist on loving God above all and neighbors as themselves (Mark 12:30,31). They even believe their help of the poor is akin to serving Christ himself (Matthew 25:40).

This is intolerable. Well, it’s been tolerable for 200 years, but no more. When the Liberal Elites got wind (through a newspaper report) that CSS would not certify same-sex couples to be foster parents due to its religious convictions, they decided to kick them off the state’s programs designed to help needy children. …

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May 18 2021

Momentous Pro-Life Case to the U.S. Supreme Court

By Mario Diaz, Esq. | Case Vault, Dobbs, Legal, News and Events, Sanctity of Life, SCOTUS | No Comments

Dobbs v. Jackson Women’s Health Organization Explained

The United States Supreme Court has agreed to hear a pro-life case out of Mississippi challenging a state law that places strict limits on abortions after 15-weeks. As with every single pro-life case that comes to the Supreme Court, you are about to hear news from the usual suspects in the liberal media that the world is about to end — again! Pay no attention to their hysterics. Here is what you need to know.

As the Supreme Court has said numerous times, states have a legitimate interest in limiting abortion and protecting innocent life. Relying on that premise, Mississippi’s “Gestational Age Act,” enacted in 2018, limits abortions after 15 weeks to the cases of medical emergencies and several fetal abnormalities.

The law was immediately challenged as unconstitutional by abortionists at the Jackson Women’s Health Organization. A federal district court agreed with the abortion clinic, declaring that Supreme Court precedent does not allow states to restrict abortions in this way until a fetus becomes “viable.” The U.S. Court of Appeals for the Fifth Circuit upheld the district court’s decision.

Mississippi is now appealing to the U.S. Supreme Court, and the Court has fortunately granted the review. Although you will hear the constant drumming of protecting Roe, the limited question before the Court is whether all pre-viability prohibitions on elective abortions are unconstitutional.

The case will be heard in the fall when the justices return from the summer recess. It joins Cameron v. EMW Women’s Surgical Center, another pro-life case that will deal with a more procedural question about the State’s authority to ensure that laws are fully defended in the courts. Dobbs, therefore, becomes the most crucial pro-life case the Court will hear, given that it will deal with the merits of the law, testing the limits of the Court’s dubious abortion jurisprudence.

The scientific advances made since the lies upon which Roe and Casey were built have exposed the lie of abortion. As women peer into the womb, the fact that we are not dealing with a blob of tissue has become apparent. And given that undeniable fact, pro-abortion proponents and sympathetic judges have struggled to come up with a clearly arbitrary, yet credible, artificial line at which to allow abortions.

Most Americans (up to 74%) want to ban second and third-trimester abortions.

Now you may be thinking, “What difference does that make? This is a legal case, and polls shouldn’t matter to the Court,” and you would be right. Traditionally, the Court would look at the law and the facts of the case and render a decision on the law, giving the legislature ample room to operate and make policy determinations within constitutional limits.

Nevertheless, in the case of Roe—in the abortion context—the Court has so overstepped its role that all it has and will ever have (until it corrects itself) are questions of policy. Now they are legislating about viability and weighing and reweighing the state’s interests in protecting life and protecting women and children. It is embarrassing. Can there be any more compelling interest than these?

But when it comes to abortion, the Supreme Court has had to employ all kinds of gimmicks and smokescreens in order to ignore its traditional role and interpretative procedures to preserve the abortion fiction. Justice Anthony Kennedy admitted as much in the Carhart decision writing:

“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.’”

What has the other side so bent out of shape this time around is that they are not sure they have enough liberal legal wizards to perform their abortion alchemy to save their all-encompassing pro-abortion standard, where even the most reasonable restrictions on abortion are unconstitutional.

There is indeed much hope for most Americans who support such restrictions, given the gains we have made at the U.S. Supreme Court. But far from a turn to the extreme right as you are sure to read about in the papers, all we will hopefully witness (God willing) is a return to the basic tenant of truth in law. A return to scientific reasonableness. A return to biological reality.

And that will be a monumental step indeed.

Apr 30 2021

California Just Doesn’t Get It

By Mario Diaz, Esq. | Briefs, Case Vault, Legal, News and Events, SCOTUS | No Comments

They know it is wrong. You have told them it is wrong. But our kids do it anyway, don’t they? Of course, we know once caught, they promise they will never do it again. Ever. They promise they get it, but you walk away from the conversation thinking, “They don’t get it.”

That was the feeling one got from the state of California after hearing oral arguments this week in two significant First Amendment cases before the United States Supreme Court: Americans for Prosperity Foundation v. Bonta and Thomas More Law Center v. Bonta.

The cases challenge California’s effort to force all non-profits that solicit support in the state to disclose to the government sensitive information about their major donors.

Although the state recognizes the glaring constitutional burdens on individual rights to freedom of speech and association, it still claims it needs the private information to guard against fraud. Besides, the state promises to keep the information super confidential.

Only they haven’t. As Justice Elena Kagan pointed out during oral arguments, the district court that heard the evidence in this case found that “there was a pervasive, recurring pattern of inadvertent disclosure by California.” In other words, they promise to keep the donor information private, but they don’t. They leak them intentionally or by error, ensuring, as the court also found, that “donors would likely be subject to threats and harassment.”

So, what do you do when your child has a pervasive and recurring pattern of misbehavior that endangers others? Do you just need them to promise you (one more time) that they will never do it again? …

Click here to continue reading this op-ed as featured on American Thinker.

Nov 06 2020

Fulton v. Philadelphia Argument Recap

By Mario Diaz, Esq. | Briefs, Case Vault, LBB, News and Events | No Comments

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.

Jul 01 2020

The Bostock/Harris Debacle

By Mario Diaz, Esq. | Blog, Briefs, Case Vault, Legal, News and Events, Religious Liberty, SCOTUS | No Comments

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).

Mar 06 2020

Penny Nance at Protect Women Protect Life rally at Supreme Court

Abortion Extremism on Display at the Supreme Court

By Mario Diaz, Esq. | Blog, Case Vault, Legal, News and Events, Sanctity of Life | No Comments

June Medical Services v. Russo oral arguments at the Supreme Court.

This week the United States Supreme Court heard oral arguments in an important case where abortionists are challenging a Louisiana law that requires they keep admitting privileges at nearby hospitals within 30 miles of the clinic where they perform abortions.

Concerned Women for America (CWA) was there to represent you both inside the courtroom (where the arguments were happening) and outside (where dueling rallies represented the conflict for the media). Both settings presented us with the challenge of our time— an irrational, rabid, and extremely radical pro-abortion mob that promotes abortion as the ultimate good, rejecting even the most basic of parameters of human decency.

Recently, for example, the U.S. Senate rejected the Born Alive Survivors Protection Act which simply required doctors to provide standard medical care to a baby who is born alive after a botched abortion. That’s a baby who has already been born! But it didn’t matter to the pro-abortion loyalists, who unfortunately are many in the Senate. Today’s radical, pro-abortion syndicate cannot, will not, accept anything less than the celebration of abortion for any reason up to the point of birth (and beyond, depending on the desires of the mother), paid for and promoted by you and me, the taxpayers.

This radicalism was evident at oral arguments, too. Julie Rikelman, who represented June Medical Services, could not envision any circumstance in which a law requiring admitting privileges for abortionists could be constitutional. This is significant because, under the direct precedent of the Court in Whole Woman’s Health v. Hellerstedt, which (erroneously) invalidated a Texas law, the Court’s inquiry is entirely fact-based depending on the specific situation of each state where a similar medical requirement is enacted.

Chief Justice Roberts tried to establish this simple fact as a starting point for further discussion but found no common ground from Ms. Rikelman.

CHIEF JUSTICE ROBERTS: Counsel, do you agree that the inquiry under Hellerstedt is a factual one that has to proceed state-by-state?

MS. RIKELMAN: Your Honor, I think that facts may vary, but what we know is that the district court held a trial here and found that there were no material differences between this case and –

CHIEF JUSTICE ROBERTS: No, no, I know, but if — if the issue, the statutes are on the books in other states, and if the issues are raised there, is the same inquiry required in each case? You have to have the district court examine the availability of specific clinics and the admitting privileges of doctors so that the litigation could be — the results could be different in different states?

MS. RIKELMAN: […] the burdens of a law may vary, but a law that has no benefits and doesn’t serve any valid state interest is much more likely to impose an undue burden.

Justice Brett Kavanaugh, similarly, tried several different ways to ask for any scenario where a similar law could be upheld. If the law had no effect whatsoever on providers, could it be constitutional? The counsel for the abortionists danced around the issue as much as she could, but she was ultimately pushed to admit that they could never be constitutional.

JUSTICE KAVANAUGH: Can I follow up on the Chief Justice’s earlier question and mine as well? Are you saying that admitting privileges laws are always unconstitutional, such that we don’t have to look at the facts in — state by state? Or are you saying that actually you do look at the facts state by state, and in some states, admitting privileges laws could be constitutional, if they impose no burdens?

MS. RIKELMAN: Your Honor, the burdens may vary, but a law that has no benefit and serves no valid state interest, which is what this Court held in Whole Woman’s Health, is much more likely to be an undue burden.

JUSTICE KAVANAUGH: Could an admitting privileges law of this kind ever have a valid purpose, in your view?

MS. RIKELMAN: No, Your Honor.

Abortion extremists give not an inch. They demand no limits on abortion. Even accepted medical standards must be surrendered at the altar of “choice.”

In this case, Louisiana asks this same requirement of all doctors that perform outpatient procedures in the state. But somehow, according to “Big Abortion,” abortionists must be exempt from it.

Even Justice Ruth Bader Ginsburg was surprised by this fact as she approached the topic with Louisiana Solicitor General Elizabeth Murrill.

JUSTICE GINSBURG: What about a D&C after a miscarriage? As I understand it, these two procedures are very much alike. Are similar regulations, about 30 miles, and admitting privileges applicable to a D&C following a miscarriage?

MS. MURRILL: Under the ambulatory surgery center regs, yes. Under the office practice regs which do not regulate abortion clinics, a doctor who doesn’t have a — have a residency in the proper scope of care would have to have admitting privileges and would have to have them within a 30-mile radius of — of the clinic. So, it’s the same requirement.

JUSTICE GINSBURG: It is the same?

MS. MURRILL: Yes.

JUSTICE GINSBURG: I thought there was something in the record suggesting there was no such requirement for D&C following a miscarriage.

She thought wrong. Louisiana’s law is meant to protect women. The women of Louisiana supported it and helped pass it. According to a Knights of Columbus-Marist poll, 71 percent of women (both pro-life and pro-choice women) want doctors who perform abortions to be required to have hospital admitting privileges. But Big Abortion ignores women when it is inconvenient to their narrative. To them, that law is simply an attack on its bottom line. Abortion profits motivate them, not women’s safety.

Let us pray the Court sees right through this conflict of interest and stands with the women of Louisiana by upholding this law. A decision is expected this summer.

Oct 10 2019

Transgender Legislative Petition Before SCOTUS

By Mario Diaz, Esq. | Blog, Case Vault, Family Issues, Feminist / Women's Issues, Legal, News and Events, Religious Liberty, SCOTUS | No Comments

Oral Arguments in R.G. & G.R. Harris Funeral Homes v. EEOC

“Aimee Stephens is a transgender woman,” started the argument at the United States Supreme Court in R.G. & G.R. Harris Funeral Homes v. EEOC, where Stephens is asking the Court to include “gender identity” within the definition of “sex” discrimination in federal civil rights law (specifically Title VII, the employment context in this case) . With that simple statement David Cole of the American Civil Liberties Union (ACLU), who represented Stephens, glossed over the most important fact to remember in this debate. Aimee Stephens is biologically a man. Aimee undoubtedly feels like a woman and has decided to live as a transgender woman. But the biological fact (reality) remains.

This is why, it is no violation of civil rights, to ask Aimee to use the men’s bathroom or at least to refrain from using the women’s bathroom (in many cases a single stall, private bathroom is available). Aimee is scientifically a man. If someone like Aimee wishes to enter athletic competitions, there is a place for males to compete against other male athletes. For someone like Aimee to demand to compete among female athletes is a great injustice to those who in fact are female.

This is plain for all to see. It is not bigotry.

The reality is most people empathize and even identify with the conflict between Aimee’s biology and psyche at some level. Most people in the U.S. would stand against harassment or beratement directed at Aimee. The great majority would fight against those wishing Aimee harm.

But the reality, once again, is that that is not enough for Aimee and most vocal transgender individuals. In their mind, to say they are not the sex they identify with is to discriminate against them. This is why we are seeing a push for laws that demand we refer to them as the pronoun of their choice.

Mr. Cole at oral arguments tried as hard as he could to say that that was not the issue in the case. He danced around multiple questions from Chief Justice Roberts on the issue of bathrooms, ultimately admitting to Justice Neil Gorsuch that it would be harmful to ask transgenders to follow sex-specific bathroom rules.

JUSTICE GORSUCH: “… but ultimately came to, I believe, a submission that a reasonable person in the transgender plaintiff’s position would be harmed if he or she were fired for failing to follow the bathroom rules or some sort of dress code that’s not otherwise objectionable …”

COLE: “Yeah.”

Mr. Cole’s effort to avoid the issue was so blatant, Justice Sonia Sotomayor, one of the most liberal voice on the Court, called him out on it.

JUSTICE SOTOMAYOR: “Mr. Cole, let’s not avoid the difficult issue, okay? You have a transgender person who rightly is identifying as a woman and wants to use the women’s bedroom, rightly, wrongly, not a moral choice, but this is what they identify with. Their need is genuine. I’m accepting all of that –

COLE: Yeah.

JUSTICE SOTOMAYOR: –and they want to use the women’s bathroom. But there are other women who are made uncomfortable, and not merely uncomfortable, but who would feel intruded upon if someone who still had male characteristics walked into their bathroom. That’s why we have different bathrooms.

So, the hard question is how do we deal with that? And what in the law will guide judges in balancing those things? That’s really what I think the question is about.

Still, the ACLU attorney refused to acknowledge reality. “Well, that is –that is -that is a question, Justice Sotomayor. It is not the question in this case.”

That is the sort of unreasonable halt to logic the Court would need to do to go along with the LGBTQ-affirming demands in this case.

Both Justice Samuel Alito and Ruth Bader Ginsburg tried to engage Mr. Cole in the discussion of women’s athletics (under Title IX). Round and round Mr. Cole went to avoid the issue, knowing, as we all do, the disastrous consequences for women if he were to win in this case. There are no consequences according to the way he argued the case. The hundreds of thousands of people expressing concerns, including Judge Gerard Lynch of the Second Circuit are just hysterically overreacting.

Judge Lynch supports LGBTQ protections but acknowledged the text of Title VII does not include sexual orientation and gender identity under the word “sex.” “Congress did no such thing,” he acknowledged painfully in his dissenting opinion on the case.

There was no such consideration on behalf of the arguing attorney, and in fact, there was no such introspection on behalf of the liberal side of the Court. Justice Sotomayor tried to hold it in for most of the argument but finally, let it out at the conclusion of arguments.

JUSTICE SOTOMAYOR: “May I just ask, at what point does a court continue to permit invidious discrimination against groups that, where we have a difference of opinion, we believe the language of the statute is clear. I think Justice Breyer was right that Title VII, the Civil Rights Act, all of our acts were born from the desire to ensure that we treated people equally and not on the basis of invidious reasons.”

Did you notice the shift? The text of the statute means nothing really. Passion rules. It appears Judge Sotomayor is ready to make “sex” mean whatever they feel like, as long as she perceives “invidious reasons.”

Justices Ginsburg, Breyer, Sotomayor and Kagan all seemed open to the idea of manipulating the text as needed. We can only hope they realize the consequences beyond personal passion.

Though there are forceful emotions involved in this case, and even difficult cases left unaddressed where legislation is needed, the judicial action demanded is deference to the legislative branch who has not included sexual orientation and gender identity under Title VII. And, were they to do so, would have to inevitably consider the many examples of significant harm to women’s rights that the LGBTQ-affirming side refuses to acknowledge.

John Bursch, of the Alliance Defending Freedom, who argued on behalf of Harris Funeral Homes, said it plainly, “Treating women and men equally does not mean employers have to treat men as women. That is because sex and transgender status are independent concepts.”

Noel Francisco, arguing as Solicitor General, agreed, “There’s a reason why when Congress wants to prohibit discrimination based on the traits of sexual orientation and gender identity, it lists them separately. It doesn’t define sex as including these traits.”

That should be the end of the inquiry here. This is a legislative matter, not a judicial one, and the Court should resist the temptation to engage in judicial activism, as it has done in the past with disastrous consequences.

—
Mario Diaz, Esq. is CWA’s general counsel. Follow him on Twitter @mariodiazesq.

Mar 14 2019

Sixth Circuit Greenlights Ohio Law Prohibiting Public Funding of Abortion Clinics

By Mario Diaz, Esq. | Case Vault, Legal, Planned Parenthood, Sanctity of Life | No Comments

Planned Parenthood of Greater Ohio v. Hodges

The Sixth Circuit Court of Appeals reversed a decision from the Southern District of Ohio at Cincinnati invalidating an Ohio law barring the public funding of abortion clinics. This is good news. The law has now been upheld and can go into full effect.

The court said the state’s condition for receiving public health funds “does not violate the Constitution because the [clinics] do not have a due process right to perform abortions.” I know that seems obvious, but this is exactly what Planned Parenthood has tried to argue for many years. They claim not only that women have a constitutional right to abortion but also that they, as the providers of this “holy” right, have a constitutional right to provide abortions. The court appropriately and emphatically rejected that claim. The court’s sound reasoning now opens the door for the will of the majority of Ohioans to be carried out. The citizens of Ohio, along with the majority of the rest of the country, do not want their tax dollars to subsidize abortion providers.

In 2016 Ohio passed a law prohibiting funds from being used to “(1) Perform nontherapeutic abortions; (2) Promote nontherapeutic abortions; (3) Contract with any entity that performs or promotes nontherapeutic abortions; (4) Become or continue to be an affiliate of any entity that performs or promotes nontherapeutic abortions.”

Ohio made clear the purpose of the law is, (1) to “Promote childbirth over abortion” which the Supreme Court has already said is constitutionally permissible (“[A] State is permitted to enact persuasive measures which favor childbirth over abortion, even if those measures do not further a health interest.” Planned Parenthood v. Casey, 505 U.S. 833, 886 (1992)), (2) “to avoid ‘muddl[ing]’ that message by using abortion providers as the face of the state healthcare programs” (there are thousands of quality health care options for women besides Planned Parenthood – in Ohio, one study found 280 federally qualified health clinics and rural health clinics, compared to just 28 Planned Parenthood Abortion Clinics), and (3) “to avoid entangling program funding and abortion funding” (public funding inevitably helps Planned Parenthood be the number one abortion provider in the country, performing more than 300,000 abortions a year – more than 27,000 a month, more than 900 a day).

Planned Parenthood, having become synonymous with abortion, promptly sued Ohio, “claiming that the law violates the First and Fourteenth Amendments by conditioning government funding on giving up their rights to provide abortions and to advocate for them.” The district court and a panel of the Sixth Circuit agreed and permanently enjoined the State from enforcing the law.

Thankfully, the Sixth Circuit en banc (before the full court) now reverses those misguided opinions and correctly applies the law, including applicable precedent, to this case. Judge Jeffrey Sutton, writing for the court, reminds us that, “The United States Constitution does not contain an Unconstitutional Conditions Clause.” Writing clearly and concisely, he says, “Governments generally may do what they wish with public funds,” citing Rust v. Sullivan, 500 U.S. 173, 192–94 (1991). He continues, “What makes a condition unconstitutional turns not on a freestanding prohibition against restricting public funds but on a pre-existing obligation not to violate constitutional rights.” In other words, the government cannot deny a clinic’s funding on a reason that violates the clinic’s constitutional rights.

But the constitutional right at issue here “prohibits a State from imposing an ‘undue burden’ on a woman’s access to an abortion before fetal viability. Casey, 505 U.S. at 877 (plurality).” It has nothing to do with a clinic’s right to perform abortions. “The Supreme Court has never identified a freestanding right to perform abortions.”

Therefore, since there is no constitutional right, there can be no constitutional violation of that right. It is that simple.

A woman may bring a claim, as the dissent envisions, saying this law places an undue burden on her constitutional right to obtain an abortion, but this is hard to imagine, given the facts of this case where the clinics have all publicly expressed their commitment to abortion with or without this law. Ruling for Planned Parenthood in this case, “would create a constitutional right for providers to offer abortion services and, in doing so, move the law perilously close to requiring States to subsidize abortions. Case law rejects both possibilities.”

Bottom line, “so long as the subsidy program does not otherwise violate a constitutional right of the regulated entity, the State may choose to subsidize what it wishes — whether abortion services or adoption services, whether stores that sell guns or stores that don’t.”

—

Mario Diaz, Esq. is CWA’s general counsel. Follow him on Twitter @mariodiazesq.

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