Will We Concede?

Maggie Gallagher, co-founder of the National Organization for Marriage and fellow with the American Principles Project, recently wrote a provocative challenge to continue standing for traditional marriage:

Can it really be just a coincidence that Pope Francis releases his first “encyclical” reiterating the Church’s timeless teaching about marriage the same week Justice Anthony Kennedy released what I called his “fatwa” against opponents of gay marriage?

I called Justice Kennedy’s opinion a fatwa for two reasons: first, he refused to engage any rational argument; he simply dismissed our whole marriage tradition out of hand, without discussion. Second, he declared half the American people simply “enemies of the human race,” as Justice Scalia put it, for our commitment to the idea that marriage is the union of husband and wife.  He made a Constitutional religion out of gay marriage, whole cloth, without any textual support at all.

Make no mistake this Supreme Court decision striking down DOMA is the Roe v. Wade of marriage—just with a slight delay in the full implementation.
The question now is: will we submit, or will we retain in our own eyes our inherent dignity as freeborn citizens of a great nation? Here’s how I put it in interview with Kathryn Jean Lopez on NRO:

“Will we concede the legitimacy of Kennedy’s fatwa against us, or will we respond with a sustained opposition — legal, political, cultural, and of the moral imagination?
I don’t believe in inevitability, I believe in human freedom and our power to shape the future. So it depends on us. But certainly I believe, as I wrote in the Los Angeles Times, that the questions raised by marriage — deeply rooted in our conception of who we are as men and women, the meaning of sexuality and gender — cannot be put to rest by the power of five lawyers on however high a court.

The cultural struggle I predicted in “Banned in Boston” is clearly playing out. Will they succeed in persuading us to accept the second-class status Kennedy lays out for us?

Not me, what about you?"

For more on this issue, including more commentary from Maggie,  see the following resources:

- Encyclical Letter “Lumen Fidei”, June 29, 2013

- Windsor v. United States, Justice Samuel Alito Dissent

- “Family Advocates Say Marriage Ruling Ignores Children” National Catholic Register, June 27, 2013

- “Moral Issues Can’t Simply Be Ruled Invalid” L.A. Times, June 27, 2103

- Interview “The Roe of Marriage” National Review Online, July 3, 2013

The California Case of Hollingsworth v. Perry and Family Restoration

            The Supreme Court of the United States (SCOTUS) ruled (somewhat) on California’s Proposition 8 case in Hollingsworth v. Perry, U.S., No. 12-144, on June 26, 2013.  The High Court determined that it did not have jurisdiction to hear the merits of the case because the proponents of the state ballot initiative defining marriage lacked standing to appeal in the Ninth Circuit despite the fact that their elected representatives would not defend the State’s democratically upheld referendum.  Many experts assume we will see many more challenges to iron out the questions left in the wake of this ruling, but it is worth sorting out a bit more here in the context of family restoration. 

            What this case means is that California’s laws on marriage have not worked to overturn the state laws in all 50 states.  Rather, it seems that the Justices stayed out of state law making.  If the Court had, on the other hand, ruled that California’s Proposition 8 was unconstitutional, that result would have overturned every single state law on marriage throughout the nation.

            In another tight 5-4 opinion, Justice Roberts wrote the opinion for the majority, and was joined by Scalia, Ginsburg, Breyer and Sotomayor, JJ., determining that the petitioners lacked standing to appeal the district court's order striking down Proposition 8, California's marriage law. When Proposition 8 was initially struck down in 2010 by the U.S. District Judge Vaughn Walker, then-governor Arnold Schwarzenegger and former attorney general and current governor, Jerry Brown, who were originally defendants in the lawsuit, refused to continue defending the measure on appeal. This left defendant-intervenors Project Marriage and other pro-family groups to defend the law and appeal the ruling. In finding that these citizen groups lack standing to do so the Court’s opinion states:

            Federal courts have authority under the Constitution to answer such questions only if necessary to do so in the course of deciding an actual "case" or "controversy." As used in the Constitution, those words do not include every sort of dispute, but only those "historically viewed as capable of resolution through the judicial process."... This is an essential limit on our power: It ensures that we act as judges, and do not engage in policymaking properly left to elected representatives. 

            For there to be such a case or controversy, it is not enough that the party invoking the power of the court have a keen interest in the issue. That party must also have "standing," which requires, among other things, that it have suffered a concrete and particularized injury. Because we find that petitioners do not have standing, we have no authority to decide this case on the merits, and neither did the Ninth Circuit.

            The court vacated the judgment of the U.S. Court of Appeals for the Ninth Circuit. Justice Anthony Kennedy filed a dissenting opinion, joined by Justices Clarence Thomas, Samuel Alito and Sonia Sotomayor. Kennedy would have found standing because the California Supreme Court has a right to interpret its own laws regarding who may intervene to support voter-approved ballot initiatives—a question it previously resolved in petitioners' favor. 

            Effectively the Court decided that it could not decide the big issue: whether the U.S. Constitution forbids the voters of California (or any state) from defining marriage the way they did. The Court also decided that the Ninth U.S. Circuit Court of Appeals, which heard the appeal before it got to the Supreme Court, didn’t have the authority to decide the issue either, and erased its 2012 decision, which held Prop 8 unconstitutional. That leaves the case in a posture where the federal district court opinion from 2010 issued by now-retired Judge Vaughan Walker is the only opinion left in the case. He declared Prop 8 unconstitutional, but serious legal questions remain, and more litigation may be on the horizon as a result. While the full impact of this decision remains to be seen, it appears that Walker's order is the only ruling in effect; however under California Law a Proposition may be overturned only by an Appellate Court; hence, Proposition 8 may still be valid California law.  Although the state’s governor has ordered the issuance of marriage licenses to same-sex couples, and an appellate court refused to stay those licenses, a clerk who refuses to issue a marriage license to same-sex couples may not be legally wrong in doing so.  Further legal proceedings will determine what happens to marriage in California, but the Perry decision is limited to California.

            Though the Wall Street Journal called the combination of the two marriage cases “A Gay Marriage Muddle,” in their June 27^th editorial, media reports can tend to gloss over significant substantive matters involved in these cases.  This can lead to inaccuracy in public understanding, and an authentic corruption of fairness and honesty.  With colleague Dr. Mark Yarhouse, our article on these concerns is available for review and download from SSRN.  

            Religious freedom is harmed by these cases.  The Christian Legal Society filed an amicus brief in the Supreme Court explaining why redefining marriage is likely to harm traditional religious believers' ability to live their faith in the public square.  Religious freedom is at stake in this attempt to redefine marriage. Adoption agencies, churches, florists, bakers, photographers and parents are mostly on the losing end when their religious faith conflicts with the elevation of homosexuality in culture. These concerns will only increase after Perry and Windsor.

            Democracy is deeply damaged by the opinion in Perry. That decision effectively denies democracy itself.  It is not simply a liberal or conservative concern, nor a religious issue, nor is it just a marriage issue, and neither is it just a California issue. The High Court’s ruling seems more like a disregard for democracy that affects all Americans. The Court neglected to uphold the public votes of more than seven million California citizens because they could not stand in the place of their elected officials who refused to defend legitimate state laws.  The will of the people has been completely undermined.

            Children were absent in the Perry discussion, but they will bear the brunt of the decision.  The price of redefining marriage is high for children who have already suffered from other social experiments like divorce and cohabitation. Children of same-sex unions are intentionally denied a father or a mother when two adults determine that what they want is more important than what children need.

            The public policy debate will continue.  The case for marriage is about more than a couple’s romantic ties.  That fact is significant for California, and for the nation, because marriage as the foundation for a family remains the best available method for raising children. Family strength and restoration was not assisted by Perry.  All the recent cases ruled on by the Supreme Court of the United States can be accessed at the official SCOTUS site. For more information and analysis on both of these marriage cases see the Marriage Law Digest at marriagedebate.com.

            Our next post will discuss the important family law case regarding adoption and Native American families which the Supreme Court also ruled on at the end of June.

ESPN, Wedding Cakes, and Religious Beliefs

In the wake of marriage expansion, people of faith can be maligned for holding to basic ideas of marriage.

Governors for both Delaware (see more) and Rhode Island (see more) have signed into law resolutions to expand marriage for same sex partners.  Meanwhile, private individuals of faith are being coerced into support for marriage expansion, or denigrated for their support of marriage.

At the end of April, ESPN Reporter Chris Broussard came under attack for supporting marriage in an Outside the Lines piece.  See commentary and a link to that segment here.

In Oregon a bakery owner who refused to provide a cake for a lesbian wedding is being investigated by the State for violations of Oregon's non-discrimination act. You can see the case here. This case is just in the beginning stages.

Meanwhile, a Seattle florist is also being sued for refusing to provide wedding flowers for a same sex wedding. You can see more about that story at here.

Regent alumna Anna Adams, now an attorney in Oregon, has written about these issues in her recent article published by the Regent Journal of Law and Public Policy, which can be accessed here.

Family restoration requires people of faith to be able to freely hold to their beliefs on marriage, enjoy First Amendment rights to speak about those beliefs in an appropriate time, place, and manner, and to continue to practice their faith by holding to their beliefs on marriage, as the United States Constitution guarantees. 

Sports stories and wedding arrangement vendors should not be maligned for their views on marriage.

Revoking Family's Asylum in the U.S. Does not Foster Family Restoration

Parents have the right to direct the upbringing of their children.  That right is constitutionally protected in the United States, but not in all nations.  When the Romeike family was being forced to stop homeschooling their children by government-ordered police action, they fled to the United States.  The Home School Legal Defense Association (HSLDA) successfully represented them in their immigration asylum claims, and they became the first family to obtain asylum for the protection of homeschooling rights. 

Now the U.S. Department of Justice is petitioning to revoke that asylum.  “The U.S. Department of Justice wants to revoke asylum granted to a German family that fled their country after facing persecution for homeschooling their five children. Germany has a broad ban on homeschooling with very few exceptions.  Music teachers Uwe and Hannelore Romeike were prohibited from homeschooling. The evangelical Christians withdrew their children from public school in 2006. They were concerned that the school’s values were in conflict with their values. Two years later — after facing police visits to their home to take their kids to public school — the family moved to the U.S.

In 2010, the Home School Legal Defense Association (HSLDA) took the Romeikes’ case, and helped them win a legal battle. They became the first family to obtain asylum for the protection of homeschooling rights. For a while, the Romeikes were able to homeschool their children in their small Tennessee town. But then Attorney General Eric Holder appealed the decision to the Board of Immigration. The Board sided with the government. HSLDA then appealed to the 6th U.S. Circuit Court of Appeals. The way the government argued the case undercut parents’ rights to raise and teach their children as they wish.

“(Holder’s office) argued that there was no violation of anyone’s protected rights in a law that entirely bans homeschooling ,” HSLDA Founder and Chairman Michael Farris writes on the organization’s website.  Holder’s second argument is revealing, he said. “The U.S. government contended that the Romeikes’ case failed to show that there was any discrimination based on religion because, among other reasons, the Romeikes did not prove that all homeschoolers were religious, and that not all Christians believed they had to homeschool.”  This argument reveals a dangerous form of “group think,” Farris added. “The central problem here is that the U.S. government does not understand that religious freedom is an individual right,” he explained. “One need not be part of any church or other religious group to be able to make a religious freedom claim. Specifically, one doesn’t have to follow the dictates of a church to claim religious freedom — one should be able to follow the dictates of God himself.”

Read the entire article by Bethany Monk of Citizen Link at “U.S. Wants to Send Christian Homeschool Family Back to Germany,” at

http://www.citizenlink.com/2013/02/18/u-s-wants-to-send-christian-homeschool-family-back-to-germany/ .  You can also read the Romeikes’ opening brief.  And here you can read the DOJ’s response to the Romeikes’ opening brief.  Finally, read the Romeikes’ reply brief.

Parents’ rights are fundamentally protected in the United States, and those rights inure to all immigrants who are granted asylum.  To revoke that asylum is extremely unusual.  The challenges families face in immigration policies are numerous and I have written about them before.  You can access those remarks, entitled “The Challenges of Family Law and Immigration Policy,” at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1962671.  The 6^th Circuit Court of Appeals will determine if police-forced public education that parents have deemed not in the best interests for their children is sufficient grounds for granting asylum.   To learn more about what rights parents have in protecting their children see the new book out by Congressman Steve Bloom and Kerriel Bailey, Esq. (Regent Law 2008), entitled They’ve Crossed the Line: A Patriot’s Guide to Religious Freedom, available at www.AMGPublishers.com.  

Revoking one family’s asylum could be a strong signal of harm to families and to the immigration process that might have otherwise worked toward family restoration.

Religious Liberty, Family, & Authentic Promises

A Lawyer Priest, Fr. Sammie L. Maletta, Jr. is pastor of Saint John the Evangelist R.C. Parish, Saint John, Indiana. Passionate about his love for the Lord Jesus, Fr. Maletta has felt betrayal by current government administrators in their promises of protected faith and conscience concerns.

Religious liberty is eroded by government health care requirements on reproductive services that terminate life. Below is a sermon that Fr. Maletta preached on February 5, 2012 that tackles this very real problem: http://www.youtube.com/watch?v=ltTd81XpDnc.

"First they came for the Communists, but I was not a Communist so I did not speak out. Then they came for the Socialists and the Trade Unionists, but I was neither, so I did not speak out. Then they came for the Jews [Catholics], but I was not a Jew [Catholic] so I did not speak out. And when they came for me, there was no one left to speak out for me."
-- Dietrich Bonhoeffer

More than two thousand years ago, Jesus proclaimed victory over the grave to give eternal life for all who believe in him. In John 5:24 he promises that "Whoever hears My Word and believes Him who sent Me has eternal life and will not be condemned; he has crossed over from death to life."

It is finished.

Contraceptive Mandate and Rights of Conscience Drive a Political Wedge that Harms Families

The Regent University Federalist Society hosted Professor Robin Fretwell Wilson of Washington and Lee University School of Law on Monday, March 19 for a special event to discuss "The Contraceptive Mandate and Rights of Conscience." Professor Wilson is the Class of 1958 Law Alumni Professor of Law, and has been focusing her recent scholarship on providing accommodations for religious organizations on social issues that seem publicly divisive, but about which reasonable people, particularly people of faith, may have valid objections.

As part of the Patient Protection and Affordable Care Act citizens and employers in the United States will be forced to pay to make contraceptives available free of charge to any consumers who wish to use them. Being made to participate in the reproductive health care of others is not something Americans expected in health care reform. In light of discussions on this matter over the past two weeks, this issue is most controversial for those of faith, but it is not unreasonable to think that some Americans may have objections to such provisions not necessarily based on faith, but simply based on liberty. See the rise of the Catholic Church on this issue at The Daily Caller, and USA Today's recent discussion of government sponsored accommodations for religious objectors.

Professor Wilson argued that being made to participate in the reproductive health of others appears to be a neutral rule with a disproportionate effect on religious institutions and organizations, and therefore argues for carving out accommodations that honor religious objectives yet still comply with the law. She also discussed the concerns over contraceptives and sterilization generally, as well as concerns over contragestives (often labeled as contraceptives) particularly, noting their abortive qualities. Responses were offered by Regent Law Professors David Wagner, Lynne Marie Kohm, and Thomas Folsom for a lively discussion. The Federalist Society sponsored a vibrant, sprite, timely and well received event on this important issue.

Forced payment of contraception not only harms religious employers, but it drives a political wedge into the fabric of American liberty. That liberty generally protects individuals and families to make their own reproductive health care choices, rather than being coerced to be a funding party to anyone else's sexual choices. Contraceptive mandates violate rights of conscience for individuals, families, religious employers, and many other Americans, and in no way foster family restoration.

Rifqa Bary, Religious Freedom, and Bullying

Rifqa Bary, the teenage Muslim-to-Christian covert who made international news in 2009 after fleeing her parents and the radical Islamic community in Columbus, Ohio when threatened with an honor/apostate killing for her conversion, is alive and well living in safety and in religious freedom because a few friends and other people used their resources and expertise to protect her. 

Her recent deposition, which was taken telephonically from an undisclosed location for security reasons, cleared her Florida attorney John Stemberger of allegations made by an Ohio attorney who represents Bary's parents.  Stemberger represented Rifqa Bary in the Orlando dependency case before the jurisdiction of the case was transferred to Ohio where Rifqa's legal team won her case on August 10, 2010, securing her dependency status away from her parents and eventually obtaining her immigration standing as a permanent U.S. legal resident with a track to become a citizen in four years. The Florida Bar's dismissal of Stemberger's case came exactly one week after Rifqa Bary's deposition.  At the end of the deposition, she gave a passionate plea that the action being taken against Stemberger was a "grave injustice" and that he was responsible for helping to save her life. Rifqa Bary said, "I believe the bringing of this case was a great injustice because I would not be here without the aid of this man's counsel in my court hearing."   See the entire story here. 

John Stemberger has written on "lawfare"-- the use of law and legal processes as a weapon to squelch free speech, at http://www.christiannewstoday.com/Christian_News_Report_4833.html .  This pattern is disturbing, and has affected other attorneys.  For example, the state Bar in Kansas has attempted to discipline Attorney General Phill Kline for statements he made in exposing Planned Parenthood and its illegal activities.  Angie Lloyd is a clinical law professor and respected child advocate in Columbus who served as one of Rifqa Bary's lawyers in Ohio.  She also had criminal charges filed against her and an Ohio Bar Grievance.  In a way, this type of treatment of lawyers is a litigious form of bullying. 

Bullying has heralded a lot of attention lately from the White House and the news media, but much of it has focused on special groups of targeted victims.  Those victims have not included children like Rifqa Bary, who was essentially bullied by a hostile religious community; nor have they included adults who speak up for notions that seek to protect the vulnerable, such as Kline, Stemberger, and Lloyd.

Regent Law graduates are making a difference in this arena.  Last week Dale Schowengerdt,  Regent '07, now attorney for the Alliance Defense Fund, provided a federal commission with a recommended policy on bullying that focuses more on local and grassroots levels, where the danger of bullying occurs.  On behalf of the Alliance Defense Fund Schowengerdt submitted a model anti-bullying policy to the U.S. Commission on Civil Rights for recommendation to school boards and other governing bodies. Unlike other policies, the policy drafted by Schowengerdt and other ADF attorneys would protect all students from bullying rather than only a select few and would be implemented by school boards rather than the federal government.

"All students deserve to be protected from bullying, not just certain ones favored by certain political activist groups," said ADF Legal Counsel Dale Schowengerdt.  "The constitutionally sound policy we are recommending protects all students, is designed for local school boards where it can be effective instead of involving the federal government, and guards student rights protected by the First Amendment."  ADF submitted its recommended policy to the U.S. Commission on Civil Rights in response to a request for input on peer-to-peer violence and bullying in K-12 government-run schools. The commission is also seeking other public input by e-mail through May 27.  The ADF submission to the commission explains that "while we support stopping violence and bullying in schools, we do not believe that programs to accomplish this laudable end should be imposed by the federal government nor only advance the political interests of certain groups while ignoring the needs of most schoolchildren experiencing bullying. All students deserve to be protected from bullying, which is why we composed a model anti-bullying policy that protects all students instead of just a select few." You may read the entire story at http://www.adfmedia.org/News/PRDetail/4767.

Religous liberty, or the lack thereof, can become a basis for bullying, or life-threatening peril. Families can and should be the first line of defense for those who are victimized. 

When a family cannot be, however, good lawyers make a tremendous difference.  In Act IV of Scene ii of Shakespeare's Henry VI, Dick the Butcher plots to end liberty, recognizing the key to the demise of freedom when he boldy declares, "First thing we must do... Let's kill all the lawyers."  

"I AM the Resurrection and the Life" and the Restorer of Life and Families

The key to family restoration begins with a personal relationship with Jesus Christ. He restores life, and He restores families. These modern miracles are only possible because he has had victory over sin and death with His Resurrection, which many around the globe celebrate as Easter.

You can experience this new hope and restoration in your own life, and in your own family. Simply click on the page link above for "Spiritual Laws" here at Family Restoration, and learn how to being that personal relationship with God that can restore your life and your family.

Be encouraged in your personal faith in Christ, and watch as an incredible painting of the Resurrection is done right before your eyes in about four minutes at http://www.youtube.com/watch?v=-yABivU-AKQ. Additionally, Regent University and the Christian Broadcasting Network are together sponsoring a special Resurrection exhibit at Norfolk, Virginia’s famed Chrysler Museum, by James Tissot, French painter, called “The life of Christ.”

This Easter be reminded that the Victor of life and death can restore your family.

Please enjoy this special thank you for being a valuable part of the Regent University community:
Complimentary entry to view one of the most artful, dramatic and influential visualizations of the early Christian story ever created, James Tissot: The Life of Christ—now on display at the Chrysler Museum.

The Life of Christ includes more than 120 watercolor paintings that depict the life of Christ from His birth through His resurrection. On display through June 5, the collection was produced by French artist James Tissot as illustrations for his publication of the New Testament, also called the Tissot Bible.

We know you will appreciate the significance of this opportunity that is sure to enrich your Easter season. Plan your visit today!

About James Tissot: The Life of Christ
James Tissot was a leading French society painter who shifted his artistic focus after experiencing a spiritual transformation. In 1885 he undertook a comprehensive series of paintings illustrating Jesus' life, travelling throughout the Holy Land in a quest for historical accuracy. His images shaped popular conceptions about Christ and His life, and 19th century newspapers reported that his exhibition sparked religious revivals and that some visitors toured early exhibitions weeping and on their knees, as if on a pilgrimage. After a tour of America in 1900, the entire set of Tissot's original paintings was acquired by the Brooklyn Museum. The Life of Christ displays more than 120 of the artist's best watercolor illustrations: an exhibition of compelling power, miraculous detail and riveting narrative. 

When: Now through June 5, 2011
Where: The Chrysler Museum, 245 West Olney Road, Norfolk, Virginia
Museum Hours:
Wed. 10 a.m. – 9 p.m.; Thurs. - Sat. 10 a.m. – 5 p.m.; Sun. Noon – 5 p.m.
Cost:
Free of Charge (with Regent or CBN I.D.)
Sponsored in part by Regent University and The Christian Broadcasting Network, this special opportunity is extended to Regent students, faculty, staff and alumni at no cost. Entry for other guests age 12 or older is $5.
Online Preview:
chrysler.org/tissot-life-of-christ.asp