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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).

Wow! The video below is about the most shocking thing — which is saying landfills — I’ve ever seen or heard regarding public education. It will floor you. If you haven’t heard the audio or seen the video yet, or heard media outlets reporting or discussing (debating) it yet, you soon will. It’s a case of The Left taking offense at being called extreme and anti-American when its their own words at work. Not much can be added to what you will see. (See The Blaze.com for more on this story.)

Here’s the background: The Tuscon (Arizona) Unified School District is using a text book for students as early as the 3rd grade, in a course of study called the Ethnic Studies Curriculum, which contains content that not only disparages and lies about America and certain groups of Americans (whites, Christians), but does it in a vile way, including several four-letter words! “Blood sucking capitalists” is about as mild as it gets in this leftist propaganda “text book.”

Parents finally confronted the district school board about this recently, a portion of which is on the video. The school board members act as if this is news to them and one doesn’t even recognize the irony when he asks a parent to stop reading the offending words at the meeting even though children in school are being subjected to them! Still, liberals and teacher union bosses and political hacks, and their liberal legislative allies at all levels of government throughout the country insist nothing is wrong with public education  . . . except a lack of money (which pays for this trash). Amazing!

Warning: The video below contains coarse and vile language.

Oh, wait. Maybe the public schools  just need more money! That’s the answer  . . . it always is!

The Sunday before Election Day 2006, a Richmond Times-Dispatch headline screamed that polling showed the Marriage Amendment campaign had tightened. The poll said that the amendment defining marriage as between one man and one woman was supported by a slim 49-45 percent margin. That was the closest poll we had ever seen on the issue.

Two days later, the amendment passed by a 14 point margin, 57-43 percent. How could the T-D poll have been so wrong just two days prior to the vote?

Polls taken over the years on the definition of marriage have wavered more than Tim Kaine on gay adoption (remember, running for governor in 2005 he opposed homosexual couples adopting, but now he’s in favor of it). For example, Gallup polling on the issue of homosexual marriage went from 46 percent support in 2007, down to 40 percent in 2008 and 2009, but back up to 44 percent in 2010. So it doesn’t surprise me at all that a Washington Post media poll of 1,000 people has found that, according to the Post, “Virginians are closely split on gay marriage” — and that the rest of the state’s mainstream media ran with it.

But are they really?

The truth is that polls have been overwhelmingly disconnected from reality when it comes to the issue of homosexual marriage. One need look only as far as the 31 states that have had the issue put to the voters, and in every case the traditional definition of marriage has won, including California.

The longer I am involved in politics, the more dismissive I have become of most media polling. Many experts believe that, particularly on the issues of abortion and homosexuality, a lot of people tell a pollster what they think the pollster wants to hear. On the issue of same-sex marriage, while a few media polls indicate that people support it, in the 31 states where it has gone to the ballot the people have overwhelmingly rejected it. One might tell their neighbor they are open to homosexual marriage, but when the reality is in front of them in the voting booth, traditional marriage still resonates instinctively, intuitively, justly . . . morally.

Social issues such as abortion and homosexuality have dynamics at play that I don’t think can be measured with simple media polling. Asking 1,000 people a simple question doesn’t generally get to the core of complex issues. It makes for interesting editorial page fodder, but I doubt too many people take it seriously, except for the so-called “progressives” who will no doubt champion the media poll and bring the issue before the next General Assembly. I suspect some will even attempt to make it a campaign issue (funny, I thought it was all about the economy).

But I also find it interesting that the same “progressives” reject professional (not media) polling that shows an overwhelming number of Virginians support school choice. You see, polling can work both ways, which is why no one should base their beliefs or agenda on it. Sure, professionally done, in depth issue polling can provide insight, but hastily done media polls done over a weekend for the mainstream media isn’t something I want to base any policy decision on. I certainly wouldn’t want to base the future of our children on it.

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.

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.

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.”

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.

Can economic (i.e., limited government) conservatives and social conservatives get along, at least long enough, to coalesce around shared principles in a coalition to restore government to its proper scope and role? What are those shared principles and how do they complement each other? Should there by a truce on social issues in the 2012 presidential campaign? Family Foundation President Victoria Cobb and host Scott Lee discuss these issues on the Score Radio Network. The interview was aired on radio stations around Virginia and streamed on various Internet services on April 16. Now it is archived at SRN’s Web site. The interview lasts a little more than 11 minutes and we think you will enjoy it.

Click here to listen to TFF President Victoria Cobb’s interview on the Score Radio Network.