Congratulations to Senator Mark Obenshain (R-26, Harrisonburg) and his wife Suzanne who were awarded the Wilberforce Award at the Valley Family Forum’s annual “Salute To The Family” dinner Friday night. A heartfelt thanks to the hundreds who turned out for the dinner to hear Bishop E.W. Jackson speak and to advance family values in the Shenandoah Valley and Commonwealth.
As if the Fourth U.S. Circuit Court of Appeals isn’t busy enough this week. Not only will it decide on ObamaCare, it got the above question, too, in a case in which The Family Foundation filed an amicus brief last year. Now asked, another three judge panel will decide the constitutionality of the prayer policy of the Forsyth County, N.C. — but with national implications.
The policy, drafted by the Alliance Defense Fund, allows for anyone of any faith to pray before county government meetings on a first come, first serve basis. The content of the prayers are not reviewed by government officials. Plaintiffs represented by the ACLU contend that, because most of the “prayers” at the meetings over an eighteen month period were “sectarian,” the policy is unconstitutional. According to ADF attorneys, plaintiffs have argued in briefs that any prayer before public meetings is unconstitutional.
Judges Harvie Wilkinson, Paul Niemeyer and Barbara Keenan comprise the panel. If their questioning of attorneys arguing the case is any indication of where they stand on the issue, Judge Keenan is clearly in the ACLU camp. Appointed to the court by President Obama, she was particularly hostile toward ADF’s arguments and clearly favored the idea of “inclusive” prayers if there were going to be any prayers at all. Judge Niemeyer appeared much more favorable toward public prayer, stating that prayers without mentioning a specific deity are “just words.” Judge Wilkinson seemed like the swing vote, questioning both sides on multiple issues throughout the hour and ten minute hearing.
The details of this case date back to March 2007 when the ACLU and Americans United for Separation of Church and State filed suit against North Carolina’s Forsyth County Board of Supervisors, stating:
[the Board] does not have a policy which discourages or prohibits those whom [the Board] has invited to deliver prayers from including references to Jesus Christ, or any other sectarian deity, as part of their prayers.
As ADF Senior Legal Counsel Mike Johnson, who argued in favor of the policy, aptly pointed out, “An invocation according to the dictates of the giver’s conscience is not an establishment of religion. If it was, you’d have to argue that the drafters of the U.S. Constitution were violating the Constitution in the prayers and invocations that they themselves offered.” (Mike Johnson testified, at Family Foundation request during the 2009 General Assembly, on behalf of the rights of state police chaplains to pray in Jesus’ name. See video.)
A primary issue in the case is whether or not a voluntary prayer before a government meeting is “government” or private speech. If private, it is clearly protected by the First Amendment. But by the ACLU’s logic, anything said at a government meeting by a private individual is government speech just by virtue of saying at that meeting.
Several Virginia legislators also signed on to an amicus brief in support of religious liberty in Joyner v. Forsyth County. They include Delegates Kathy Byron (R-22, Lynchburg), Bill Carrico (R-5, Galax), Bob Marshall (R-13, Manassas), and Brenda Pogge (R-96, Yorktown); and Senators Mark Obenshain (R-26, Harrisonburg) and Jill Holtzman Vogel (R-27, Winchester).
Our friends at Virginia Virtucon this morning relayed what appears to be an e-mail update to friends from former delegate and Republican Party of Virginia Chairman Jeff Frederick in which he announces that he is “actively considering” a run for the 36th district Virginia Senate seat currently held by liberal Democrat Toddy Puller. In the note, Mr. Frederick also announces the launch of his new web site and blog and plugs his new political action committee — Virginia’s Future PAC — dedicated to funding conservative Virginia legislative candidates. But the thrust of it is about his potential run for the General Assembly’s upper chamber:
Second, I have a bit of an announcement. Sort of.
To perhaps reduce some of the phone calls I’m getting from a number of folks, I wanted to let you know that I am actively considering running for the state Senate. Specifically, in the 36th district (current incumbent: Toddy Puller).
You know me as someone “who does what he says” and “says what he means”, so when I say we’re considering running, I mean it. Nothing more and nothing less; this is not some coy politician way of saying I’m running but I don’t want it public yet. The honest truth is that I’m on the fence (which is unusual for me). The fact is, as you might imagine, there are both pros and cons of such an undertaking of attempting to unseat an incumbent in a marginal (or just flat out tough gerrymandered) district; doing so in such a short timeframe; and reentering public life with three children under the age of 5.
But, for me it’s always been about serving and if God is lighting the path for me to contribute in this way, we’ll charge full speed ahead at the opportunity — and the challenge.
It would certainly be interesting campaign if Mr. Frederick enters it and quite a contrast in candidates’ philosophies. But despite the Democrat leanings of the district, no one should count out the former delegate should he run. After all, he won three terms in the House from a Democrat leaning district that went to the Dems in 2009 — a landslide Republican year and the year he did not seek re-election. So, he does know how to campaign. If he does run and win, the Virginia Senate most definitely will be a different place. Stay tuned.
Our string of providing complete, start-to-finish coverage of Attorney General Ken Cuccinelli’s health care lawsuit news conferences took a bit of a hit yesterday because of some technical glitches. But we do have most of it and still more than anyone else has posted. So, here it is in two video blocks, joined in progress after Mr. Cucinelli’s opening remarks before taking questions (click here for a transcript of the entire statement, which is a good read). To make up for the glitch, we have sound bytes from the opening statement via Fox News’ Special Report with Bret Baier (as well as the subsequent panel discussion). In addition, so you can get the virtual effect of being at all the festivities yesterday, you can click on the links below to hear the oral arguments of the Liberty University and Virginia cases against the federal government and then watch the post-hearing news conference in the exact order in which they occurred.
Liberty University v. Timothy Geithner (1:24)
Commonwealth of Virginia v. Kathleen Sebelius (:49)
It’s not about health care. It’s about liberty.
Today the U.S. Fourth Circuit Court of Appeals heard two cases challenging the constitutionality of the federal health care law. One, Liberty University v. Timothy Geithner, was on appeal by the college, which lost its case in Federal District Court for the Western District of Virginia. The other, and more well known case, Commonwealth of Virginia v. Kathleen Sebelius, was on appeal by the federal government because Judge Henry Hudson in the Eastern District of Virginia, ruled the law unconstitutional late last year. The Fourth Circuit includes all of Virginia (as well as other states) so both appeals were heard at its courthouse in Richmond. As appeals are heard by three judge panels and since one panel within a circuit court cannot overrule another, the same panel heard both cases. Selection of the three judges, according to the court, was done at random by a computer system. Its picks were Judges Dianna Gribbon Motz, Andre Davis and James Wynn, Jr. — two appointed by President Barack Obama and one by President Bill Clinton.
Mathew Staver, Dean of the Liberty University School of Law and lead attorney for Liberty Counsel; Duncan Getchell, Solicitor General for the Commonwealth; and Acting United States Solicitor General Neal Katyal argued the cases. The judges heard the Liberty case first and despite a straightaway-launch into skeptical questioning of Mr. Staver, they were at least as difficult on Mr. Katyal. It made for a compelling debate, so much so that the scheduled 40 minute hearing was extended by Judge Motz to 1:24. It was gripping even for experienced court observers, not to mention for someone, like me, who has limited in-person exposure to high level jurisprudence.
Since it covered most of the merits of the cases in the first one (although the cases are being argued on slightly different grounds) the Virginia case only went nine minutes beyond the 40 scheduled, with most of the questioning on Virginia’s standing to even bring the case. Interestingly, Mr. Katyal said Liberty had standing, even though that was partly the grounds for its loss, because as individuals and employers it had grounds to question the employer and individual mandates enforced by the law. Although the feds lost its motion to dismiss against Virginia, again argued that line of attack. Mr. Katyal alleged Virginia passed the Health Care Freedom Act in order to have standing to challenge the health care law and that if allowed to stand, any state could pass any law any time to challenge any federal law from which it wishes to be exempt. This clearly frustrated Mr. Getchell who argued it is an unquestioned right for states to pass laws. Unfortunately, Judge Davis would have none of this and clearly blustered partisan talking points rather than judicial prowess.
On the whole, the three judges, especially Motz and Wynn, seemed open minded. Judge Motz especially perked up each time one of the three lawyers cited the Comstock case, in which her opinion came down on the limited government side. Judge Wynn clearly had problems with several instances of federal twisted logic. For example, Mr. Katyal said the words in the law don’t mean what they say in the penalty provision because it is a tax even though the word tax is never mentioned in the law; and that the law does not regulate inactivity because deciding not to purchase insurance is an activity and that forcing people to buy insurance only is an “upfront payment” for a service it will use eventually. So, there was at least an appearance that the judges, despite their political pedigree, were open minded. (Prediction: 2-1 for ObamaCare.)
But here’s a theory: Does Attorney General Ken Cuccinelli want to win at this stage? If he does, the feds surely will appeal to the entire Fourth Circuit. That will delay a trip to D.C. for a date with the Supremes by months, even a year. If Virginia loses, he can appeal directly to the U.S. Supreme Court, where its jurisprudence may well favor voiding the law. Remember, he attempted an extraordinary expedited appeal there and was greeted with some sympathy. He wants to get there as soon as possible. So, Virginia is in a good position: If it wins, with at least two Democrat appointed judges siding with it, the feds don’t have much chance en banc, either. One caveat: If Virginia loses on the question of standing, he would have to appeal that first, in essence to win permission just to continue the suit. That’s what was dangerous about the direction of the argument in the Virginia hearing. Ironically, it could be the Liberty lawsuit that could win the day, based on the intensity and skepticism of the questions to Mr. Katyal. We shall see.
Now, here’s a treat. Below is are links to the audio of each case. Click and enjoy your online legal education. Its worth the listen.
Liberty University v. Timothy Geithner (1:24)
It won’t be long before school is out and students will receive their final grades. Our sister organization, The Family Foundation Action, is preparing to issue its own grade report — its 2010-2011 Virginia General Assembly Report Card. This bi-annual compilation grades all senators and delegates in the General Assembly on their pro-family voting record over a full two-year General Assembly cycle, and is released to coincide with the next General Assembly election, which is this November. It provides voters every legislator’s voting record on issues relating to life, marriage, religious liberty, parental authority and constitutional government based on a wide range of key bills and Family Foundation priority legislation.
The Report Card has become a favorite of individuals and churches across Virginia and is one of the commonwealth’s most anticipated political documents and will be available by mid-May. They will be available to order free of charge for distribution at churches, schools or community groups. To be among the first in the state to receive the Report Card, click here to go to our order page, complete the form and they will be sent to you directly from the printer. Please consider placing your order before May 15 to ensure you receive your Report Cards in a timely manner. This also helps The Family Foundation Action by allowing it to prepare for Winning Matters 2011 (more on that in a future post) rather than the fulfillment and shipping of hundreds of orders.
This is another critical election year in Virginia, as all 140 seats in the General Assembly are up for election. It will be the first time in four years (when it elected a new majority) that the Virginia Senate has faced the voters, giving Virginians the opportunity to determine whether or not they like the direction the state Senate has taken since 2007.
Our Founding Fathers knew that an educated electorate was essential to good government. This has never been truer than it is today. Be sure to order enough Report Cards to have some extra for your friends, family and work associates.
Governor Bob McDonnell, no stranger to the television political talk shows since his 2009 landslide election, will appear on the granddaddy of them all Sunday with an appearance on NBC’s Meet the Press. He’ll have some atypical company in fellow guests left-winger David Axelrod, one of President Barack Obama’s closest and most trusted confidants, and Democrat-Turned-RINO-turned-independent left wing New York Mayor Michael Bloomberg. Topics include the 2012 presidential race and the economy. Expect host David Gregory to ask Governor McDonnell, the vice chairman of the Republican Governors Association, about his interest in the 2012 GOP vice presidential nomination. The governor also has been vocal about the U.S. Supreme Court’s consideration and eventual refusal to expedite the hearing of Virginia’s legal challenge to the federal health care takeover (see statement). Late last year, Federal Judge Henry Hudson ruled the law unconstitutional (as has a federal judge in Florida). The Fourth U.S. Circuit Court of Appeals is scheduled to hear the federal government’s appeal in Richmond next week. Check your local listings for the Meet the Press broadcast. Check back here for ObamaCare coverage next week.
The Richmond Times-Dispatch’s very opinionated chief political reporter, Jeff Schapiro (who doubles as a columnist and online pundit), must have had a writer’s block problem recently. How else to explain his pulling out the tried-and-true “anti-gay” attack on a social conservative? But seemingly out of nowhere, Mr. Schapiro’s latest video commentary at timesdispatch.com goes after Governor Bob McDonnell for his alleged “gay problem,” reciting votes and actions thoroughly vetted by the voters themselves who have never rejected Mr. McDonnell at the polls. Mr. Schapiro even dredges up the “thesis” and a crude question once asked to the governor when he was a candidate.
The spark that ignited Mr. Schapiro was the recent vote by the Social Services Board that rejected proposed regulations to allow homosexual couples to adopt children, which would have forced private and religious affiliated charitable services to comply with a rule that compromises their consciences and beliefs, or close down. The problem with Mr. Schapiro’s problem with Governor McDonnell is that the governor has no problem. He may want him to have a problem so much that he manufactured one, but no one is paying attention. It’s a right and just policy, popularly supported and, by the way, the law.
In fact, although the board retains a majority appointed to it by liberal former Governor Tim Kaine, it approved standards that omitted the original same-sex couple requirement by a lopsided 7-2 vote. No matter how often certain media (ahem, WRVA* in Richmond) misreported the issue as taking away a right (they never had), it’s no problem for officeholders to defend the sanctity of the traditional family. It may be a problem for Mr. Schapiro to understand that, but a gratuitous attack over a contrived problem on Governor McDonnell is only a problem for Mr. Schapiro to resolve.
* Not only did the station misreport the issue over a 2-day period, a producer chimed in on a locally produced show to call pro-family supporters “bigots.”
One of the most unsightly of all the sausage making that is the legislative process is redistricting. Every 10 years, all 140 General Assembly districts, as well as Virginia’s Congressional districts, must be redrawn to reflect population shifts as accounted for in the census. The districts can get pretty contorted, to say the least, with compactness and communities of interest giving way to snake-like shapes that slither from one end of the state to another (not that Virginia is an exception, either).
Complicating matters is that whatever the General Assembly and governor agree to must be approved by the Justice Department because Virginia falls under the Voting Rights Act. But there are several rare dynamics at play this year. For one, it’s the first time since Reconstruction that opposite parties control the two chambers during a redistricting year. As each chamber has prerogative over its districts, traditionally they don’t interfere with each other’s plan. However, with Governor Bob McDonnell as a GOP backstop to Senate Democrat mischief, Senate Dems laid down the law: Instead of two bills this year, anything coming from the House would be attached to the Senate’s bill as a way of safeguarding its new districts from the governor’s veto or amendments. If not, Senate Dems promised stalemate on the House plan. Interestingly, in this interview (read transcript) on The Kojo Nnamdi Show on WAMU-FM in March, Majority Leader Dick Saslaw (D-35, Springfield) was asked what the governor’s role was in redistricting and he replied, “sign or amend” the bill. No mention of the veto option.
Here’s more from the senator that day (hear audio), starting partisan, then trying to soften:
Well, if I lose a few seats as a result of redistricting, and I’m in the majority, I’m not doing a very good job. … And I would simply say, well, you know, our goal is to make the Democratic districts, particularly the marginal ones, a little bit better than they are now. I’m not greedy. I’m not trying to put all the Republicans out of business by any stretch. They didn’t do that to us 10 years ago. And we’re not gonna do that to them.
So much for that. Governor McDonnell vetoed the bill sent to him last week anyway, primarily because of the dysfunctional and obscenely drawn Senate districts that drew fire from groups as varied as Prince William County to the NAACP (see Jenifer Buske at the Washington Post Virginia Politics Blog). While the House plan passed with all but 10 Democrat votes, the Senate plan — which could add up to three Democrat seats per the Richmond Times-Dispatch — was divided on party lines, 22-18. No wonder. None of this was a surprise.
More dynamics: While there is time to settle the Congressional districts because those elections are not until next year, all 140 General Assembly seats are up this year. Already, primaries have been pushed back to August to accommodate the readjusted districts. Candidates filing to run still don’t know where they are running. Even if the parties and governor come to an agreement, there’s this: This is the first redistricting since the Voting Rights Act with a Democrat president. Who knows what changes his Justice Department might demand. If all of this can’t be wrapped up by a time certain, the entire process for both chambers gets transferred to judges.
But today there is hope. After he bragged that he wouldn’t change “a dot or a comma,” declared with bravado he wouldn’t “surrender” and dared the governor to issue a second veto (Ros Helderman at the Post) for fear of sending it to the unelected judiciary, Senator Saslaw backed down. Now, Senators Janet Howell (D-32, Fairfax) and Jill Vogel (R-27, Winchester) are leading a bipartisan working group to come up with a new plan (the Post). But is it false hope? Senator Howell echoed Senator Saslaw’s original sentiments: “We won’t negotiate away our majority.” But then Senator Saslaw told the Fredericksburg Free Lance-Star, “There are some of us who are going to try to . . . get things worked out in an amicable fashion. We’re determined to try to make the process work right.” The whiplash changes in attitude are enough to require psychological testing. More on that in a second.
Senator Howell needs to understand that she doesn’t determine the majority. If she did, there would be no need for elections. Voters determine majorities. One wonders what she and Senator Saslaw fear. Only three years ago, liberals heralded Virginia as blue. The existing Senate districts were good enough to flip a one-time 24-16 GOP majority to 22-18 Democrat. If Senate Democrats are so confident in their ideas and performance the last four years as the majority, what’s with the gerrymandering that has split some localities into as many as eight districts?
Grossed out yet by the sausage making? Then you may or may not want to take this little test based on Senator Howell’s vetoed plan. The districts’ shapes are so contorted one might think they are ink blots on a Rorschach test. Click here to take the Is It Howell Or Rorschach? test. Disclaimer: Score does not correlate to actual state of mental health, but may indicate the insecurity of some Senate Democrats.
Late this afternoon, the Virginia Board of Social Services voted 7-2 to accept new regulations for adoption agencies that do not include formerly proposed non-discrimination protections for homosexuals. This is a victory for religious liberty and means that faith-based adoption agencies can continue serving Virginia’s children and families without being forced to violate their faith principles.
The previously proposed regulations that included sexual behavior protections were replaced by Commissioner of Social Services Martin Brown after it came to light that adding sexual orientation to protected status would have been in conflict with existing federal and state law, and the Virginia Marriage Amendment. The attorney general’s office issued a letter to the board informing it of the conflict and, acting on that advice, as well as public comment, the commissioner made the appropriate changes.
At the board meeting, representatives from The Family Foundation, the Virginia Catholic Conference, Catholic Charities of Arlington, the Virginia Assembly of Independent Baptists, America World Adoption and Bethany Christian Services testified against the original proposal that would have forced faith-based adoption agencies to either ignore their faith principles regarding marriage and sexual behavior or stop serving families and children. Organizations that serve children and families provided particularly compelling testimony. Andrew Brown, of America World Adoption, said that making sexual behavior a protected class would decrease the number of loving families available to adopt wanted, parentless children by forcing faith-based adoption agencies out of business.
However, the vote did not come without debate, beginning this morning with a failed motion to postpone the vote until August and ending late today with arguments by proponents of the sexual orientation language that they had not had enough time to review the new regulations. Representatives of Equality Virginia, the Gay Community Center of Richmond, Mothers and Others, and other groups argued that faith-based organizations should not be allowed to “discriminate” by following their beliefs. But homosexuals in Virginia can adopt — they must go through state or non-faith-based private agencies.
The most vocal proponent of homosexual protections was social services board member Trudy Brisendine, who made the argument that she had not had time to review the new regulations. This despite the fact that the previous proposal had been initiated by outgoing Governor Tim Kaine in December of 2009 and that regulations had been open for public comment since January. She asked, embarrassingly, at one point how a “child placing agency” is defined, requiring the board’s legal counsel to point out that the definition was on page two of the proposal. It is certainly concerning that someone who has the power to vote on regulations that oversee “child placing agencies” doesn’t know how they are defined or had not read the proposal thoroughly to know the term was defined — and at the beginning of the proposal no less. While her lack of preparation most likely won’t make the news, imagine if that question came from a pro-family board member.
We thank the seven board members who voted correctly, the McDonnell administration and the attorney general for their attention to this matter, Commissioner Brown, and our pro-family partners who have worked tirelessly over the past several weeks on this important issue.