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

By | 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.”

SCOTUS Strikes Down Philadelphia’s Anti-Christian Policy

By | 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. …

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!

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

By | Case Vault, 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.

California Just Doesn’t Get It

By | 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.

Fulton v. Philadelphia Argument Recap

By | 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.

SCOTUS Rally

The Bostock/Harris Debacle

By | 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).

Penny Nance at Protect Women Protect Life rally at Supreme Court

Abortion Extremism on Display at the Supreme Court

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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.

SCOTUS Rally

Transgender Legislative Petition Before SCOTUS

By | 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.

Sixth Circuit Greenlights Ohio Law Prohibiting Public Funding of Abortion Clinics

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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.