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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 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)

Commonwealth of Virginia v. Kathleen Sebelius (:49)

Tomorrow morning at 9:30, in the U.S. Fourth Circuit Court of Appeals, the Obama administration’s appeal of Judge Henry Hudson’s ruling that the federal health care law is unconstitutional will be heard. As we have been at every step of the way, from the motion to dismiss to Judge Hudson’s decision, we will be there to cover it and will have video of Attorney General Ken Cuccinelli’s entire post hearing news conference. We are the only Internet site has posted the entirety of each of his ObamaCare news conferences. Be sure to check back here for coverage of this history-making lawsuit which will play a significant role in the direction of our country.

We were very blessed that the respected historian David Barton taped a video for us last fall, while here to keynote our Pastors Summit, to promote this year’s Call To Prayer in Colonial Williamsburg on June 1. Little did we know, coincidentally, that he appeared on Comedy Central’s The Daily Show with Jon Stewart yesterday, the day after we debuted the video here and via e-mail, Facebook, YouTube and Twitter to tens of thousands of people (see it here).

As an avid student of history, especially the Founding period of America, and with a degree in history and English from one of the commonwealth’s well thought of institutions of higher learning, I always thought of myself as pretty well informed on early American history. Not that I knew it all, but with a life-long study of it, I thought I at least knew the major points pretty well. But then I started my association with The Family Foundation and got my first exposure to Mr. Barton, the founder of WallBuilders.

What a breath of fresh air! Not only does he give voice, reason and fact to what I always instinctively and academically believed was our Founding Fathers’ actual intent regarding religious liberty, he also has thousands of original period documents which prove the point — that nowhere in the constitution can it be construed that government is hostile to religious expression, whether in private or public. No one in America has done more research from original sources on this topic than David Barton and he can quote from them faster than I can items from a fast food menu. It’s hard to imagine a more informed person on this subject — anywhere.

He also points to hundreds of events from the period, long neglected in the classroom, that flesh out principles by which these Founders lived, argued, fought and died. Actions do speak louder than words, even words on paper, and the same men who put those words to paper participated in events that today would have them fined, suspended, fired or kicked out of club, association, job or public position. Go figure. In the end, though, no one is better than simply explaining the simple or basic elements of an already straightforward document: Congress shall establish no law . . . how does that translate to prohibiting a prayer to Jesus at a high school graduation? Or state police chaplains praying in Jesus’ name? Or a city council opening its session with a prayer? How are public acts of prayer a Congressional law establishing a religion? Maybe if secularists just read the constitution they would come to understand this themselves. Otherwise, we are left to think they have a blatant disregard for it and are intent on nothing less than to “transform” America.

No one exemplifies this misguided, misinterpreted, contorted, secularist slant on the constitution in pop culture more than Jon Stewart. I give him credit for inviting Mr. Barton on his show (at the insistence of another guest, former Arkansas Governor and another friend of The Family Foundation, Mike Huckabee). But it was nothing more than mismatch, a true learning moment for Mr. Stewart.

Learning curve: David Barton taught Jon Stewart, a William & Mary grad (and not his real name), a good deal Wednesday night on The Daily Show. (Part 1 is mainly introductory talk.)

It’s unfair debating a left-wing celebrity type, but instructive: Stewart gives truth to the adage “That a little bit of knowledge is a dangerous thing.”

Mark your calendar for June 1 as we again gather in Colonial Williamsburg with concerned citizens from Hampton Roads and across the commonwealth to call out to God to restore our nation to its Judeo-Christian principles and heal our land. (See picture from last year’s event.)

On June 1, 1774, the Virginia House of Burgesses called a Day of Humiliation, Fasting and Prayer (see proclamation at CW’s web site) as American colonists called out to the Lord to intervene when the British closed the harbor at Boston. Today, our foes are much different, but they are just as real. Whether the attack is on life, on marriage or on religious liberty, we know that there are real threats to our freedom, liberty and prosperity.

The Family Foundation will commemorate that important prayer event on Wednesday, June 1, in the historic colonial capital, with the ad hoc group Virginians for Liberty, to ask the Lord to have mercy on us and heal our land. See the video below to see historian and WallBuilders founder David Barton briefly recount the historic event and explain how to participate in this very important event. After watching it, please share it or this blog post’s link with your friends, family members and especially your pastor. We have a similar video available that is designed to be shown in churches during worship services and will make that available to any church that would like to show it to their congregation. If your church does not have the ability to download and show the video, we can also make a DVD copy available for viewing.

We will assemble at the Colonial Capitol on Duke of Gloucester Street promptly at 8:00 a.m. and walk to Bruton Parish Church where prayers will be offered along with some 18th century hymns. This will cover several blocks, so wear comfortable shoes. The event will end at 9:00. Bring a U.S., Virginia or Christian flag and wave it as a symbol of your devotion to this cause.

Parking can be confusing around Colonial Williamsburg. There is a parking lot near Bassett Hall, 522 Francis Street East, which is very convenient to the Capitol. For more information or questions, please call Roger Pogge in our office at 804-343-0010 or e-mail him at roger@familyfoundation.org. We look forward to seeing you there.

A Call to Prayer

Colonial Williamsburg

Wednesday, June 1, 8:00 – 9:00 a.m

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.

Thursday, May 5, is the 60th annual National Day of Prayer observance. This year’s theme comes from from Psalm 91: ”A Mighty Fortress is our God.”

Earlier this month, in a case in which The Family Foundation filed an amicus brief, the Seventh U.S. Court of Appeals upheld the right of Americans (see Sarah Pulliam Bailey at Christianity Today) to continue this observation of God’s involvement in “the affairs of men,” as Benjamin Franklin so aptly put it at the Constitutional Convention more than 220 years ago. A nefarious group called the Freedom from Religion Foundation filed the suit.

In 1952, President Harry Truman signed into law a declaration that every president must proclaim a National Day of Prayer on the day of his choosing. In 1988, President Ronald Reagan took President Truman’s declaration one step further and set the first Thursday of May as the official National Day of Prayer. Since then, Presidents Reagan, George H.W. Bush and George W. Bush have marked the day with a White House observance and all presidents have issued commemorative proclamations. Many years, a special prayer service is held in the East Room.

At noon on May 5, many localities around Virginia and the nation will hold observances with state and local officials, pastors and ministry leaders. Click here to find an observance in your area at the National Day of Prayer’s web site. Please be careful to note the specific details and locations of each event. Also, many churches are open for prayer services at noon and throughout the day. You may also click here to learn more about the 7 x 7 Campaign to pray for the seven centers of power in our country seven days a week.

If you cannot attend an observance, please consider taking some time out of your day to specifically pray for our nation, President Obama, Governor McDonnell, Lieutenant Governor Bolling, Attorney General Cuccinelli, U.S. Senators Warner and Webb, your congressman, your state senator and delegate, as well your local elected leaders. Each of these people has a powerful effect on the lives of Virginians.

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.

Within the last few minutes the Virginia Social Services Board voted to reject proposed regulations that would allow same-sex couples to adopt children (see last week’s post for more background). These regulations would have undermined religious liberty by forcing faith-based adoption agencies to comply with a regulation (by unelected bureaucrats, much less a law) fundamentally counter to their beliefs, or close down. We will have more on this tonight or tomorrow. For now, even though if approved today the process still had many safeguard hurdles before becoming final, we have reason to celebrate.