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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).

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.

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.

Near the end of an already extraordinarily long annual “Veto Session” last night, at around 10:00, after intense debate and several failed parliamentary maneuvers by opponents, the Virginia General Assembly handed pro-lifers and Governor Bob McDonnell another big victory. After passing the House of Delegates by a comfortable margin, the Virginia Senate — whose committees long have been the burial ground for commonsense bipartisan pro-life legislation, deadlocked 20-20 on the governor’s amendments to HB 2434 — to restrict Virginia’s health insurance exchanges (when and if ObamaCare takes effect) from publicly funding abortions except in the cases of rape, incest, or life of the mother — allowing Lt. Governor Bill Bolling to break the tie and send the bill back to Governor McDonnell for his signature.

We long have stated that if certain measures could get to the floor, they would pass. This victory, another vote last night to restore the abstinence education funding eliminated by former Governor Tim Kaine, as well as the landmark vote the last week of the regular session to regulate abortion centers (all by 21-20 margins with Lt. Governor Bolling casting the tie-breaking vote each time), vindicates us. As represented by their legislators in Richmond, Virginians are decidedly pro-life.

The hard work began as lawmakers returned to the capitol Monday. Family Foundation lobbyists hit the ground running, going door to door to sure up votes and answer questions from legislators. Preceding that were efforts well before the reconvened session to educate lawmakers and their constituents. While the House looked secure, the Senate was always going to be close, with perhaps one or two senators leaning one way or another, but not fully committed.

Meanwhile, opponents in both chambers used several procedural motions to derail the votes. House members yielded their time from member to member in an attempt to control the debate and even moved to break up the governor’s amendments into separate votes. While that succeeded, all four passed. The bill then moved down the hall where Senator John Edwards (D-21) challenged the germaneness of the governor’s amendments. When Lt. Governor Bolling ruled them in order, opponents attempted to overturn the decision by a floor vote, but lost 21-19 (see vote).

After intense debate, the Senate voted 20-20, with all 18 Republicans and pro-life Democrats Chuck Colgan (D-29, Manassas) and Phillip Puckett (D-38, Tazewell) voting yes. Interestingly, Senator Roscoe Reynolds (D-20, Martinsville), who voted to sustain Lt. Governor Bolling’s ruling, voted no. When the clerk read the result, The LG decisively announced that “The chair votes aye.” Thus, the making of a law (see vote).

Despite the late vote, an early morning event may have had the most impact — the first ever meeting of the Virginia Legislative Prayer Caucus (more on the LPC in a future post). More than 500 Virginians, including many delegates and senators of both parties, gathered at the steps of the historic capitol to pray for God to shower His blessings on our Commonwealth. As Governor McDonnell reminded attendees, Matthew 19:26 says, “With man this is impossible, but with God all things are possible.”

The Family Foundation gives its overwhelming appreciation to Governor McDonnell, Lt. Governor Bolling, all 20 Senators who voted for this pro-life amendment, and to all who contacted their senator to urge their support. If you don’t think this has the grassroots excited, see our Facebook page!

It was a pro-life, pro-family sweep today at the reconvened “Veto” session of the General Assembly tonight. In addition to a dramatic abortion limiting 21-20 vote within the last hour, the Virginia Senate earlier voted by the same margin to concur with Governor McDonnell and the House of Delegates to restore abstinence education funding that former Governor Tim Kaine cut out of the state budget. As with the vote to ban taxpayer dollars from use in elective abortions in the ObamaCare state run health insurance exchanges, all 18 Republicans were joined by pro-life Democrats Phillip Puckett and Chuck Colgan to get to the magic number of 20 votes and a tie in the chamber allowing pro-life Lt. Governor Bill Bolling to break the tie in favor of the amendment.

The funding, match money corresponding to a federal grant, was initially presented in the House budget but, in the final days of session, Senate conferees stripped it out in budget negotiations. But today, the House reiterated its position by a 69-29 vote, which sent it to the Senate. Senator Colgan (D-29, Manassas), chairman of the Senate Finance Committee, introduced the amendment and urged its passage. Pro-abortion Senator Mary Margaret Whipple (D-31, Arlington) rebutted the argument, parroting Planned Parenthood and the National Abortion Rights Action League, which claim abstinence education is ineffective (despite an Obama administration study that says otherwise).

The Family Foundation thanks Governor McDonnell, Lt. Governor Bolling, and the members of the House and Senate who ensured the success of these two important pieces of legislation that soon will become law, as well as all committed pro-life, pro-family Virginians who answered our call to contact their state legislators this week. More to come tomorrow about today’s exciting developments.

Within the last few minutes, in a reprise of its stunning vote to regulate abortion centers in the waning days of the General Assembly’s regular session, the Virginia Senate approved by a vote of 21-20 Governor McDonnell’s amendment to HB 2434 that bans taxpayer funding of elective abortion coverage when (or if) the state run health care insurance exchanges begin in 2014 as mandated by the federal health care law. Throughout the day it looked like the amendments would die in the Senate, perhaps by a 21-19 margin. But, in a vote that came up in the latter stages of an all day and night annual “Veto Session,” all 18 Republican senators and pro-life Democrats Chuck Colgan and Phillip Puckett voted to add the amendments. The other 20 Democrats voted to reject them leaving the tie-breaking vote with Lt. Governor Bill Bolling who, as he did in February, voted in the affirmative. Early on in the intense debate, pro-abortion Senator John Edwards tried to have the amendments ruled non-germane, but Lt. Governor Bolling, who presides over the Senate, ruled that they were. His ruling was upheld on a 21-19 vote. Earlier in the day, the House of Delegates concurred with Governor McDonnell with about 60 votes.

Thanks to all who contacted their senators for this incredible win for Life. Because of your dedication and commitment, we have won significant pro-life legislative victories in Virginia during the past three months. More on this story to come.

In addition to Governor Bob McDonnell’s amendment to HB 2434, which would restrict Virginia’s health insurance exchanges under ObamaCare from covering abortion services, Governor McDonnell also added an amendment to reinsert abstinence funding in the Virginia budget. This funding was included in the House of Delegates budget, but budget conferees left it out of the final budget which the General Assembly approved and sent to the governor. Such funding was a regular line item in the budget until then-Governor Tim Kaine abruptly stripped it out in November 2007 as a political IOU to Planned Parenthood.

Tomorrow, the General Assembly reconvenes for its annual “Veto Session,” when it reconsiders gubernatorial vetoes and amendments to bills, and will have the opportunity to include this provision back into the budget. While it is likely the House will accept this amendment, the Senate will be an uphill climb. Please contact your senator today and urge support for Governor McDonnell’s abstinence funding amendment to the budget.

Planned Parenthood, and its ally NARAL, have made it their national agenda to stop abstinence education. Both groups consistently assail abstinence programs as being ineffective. One legislator, who works closely with Planned Parenthood and NARAL, said, “The reality is with teenagers, their hormones come into play, and abstinence-only doesn’t always work.” Work for who? The more teens postpone sexual activity, the less profit the abortion industry makes.

The pro-abortion lobby also asserts that “abstinence education doesn’t work,” “parents don’t support abstinence education,” and “it’s naive to think that teenagers can be abstinent.” None of those arguments, though, are correct according to the U.S. Department of Health and Human Services. In fact, an October 2010 study paid for by the federal Department of Heath and Human Services found that abstinence education is highly effective and it is widely supported by parents and teenagers.

The HHS survey found that 70 percent of parents agreed that it is “against [their] values for [their] adolescents to have sexual intercourse before marriage” and that “having sexual intercourse is something only married people should do.” Adolescent beliefs, according to the survey, were similar. In fact, there are federal abstinence education funds that Governor McDonnell has applied for that Mr. Kaine refused. So, even the Obama administration realizes it works.

Clearly, abstinence education is not only effective, but it is widely supported among both parents and teens. So, please contact your senator today and urge support of the governor’s amendment to reinstate abstinence funding in the budget.

Click here if you know your senator and need his or her phone number.

Click here if you don’t know who your senator is.

Last week, Governor Bob McDonnell added a pro-life amendment to an ObamaCare induced bill — Delegate Terry Kilgore’s HB 2434, that directs the Commonwealth to set up health insurance exchanges in accordance with the new law. (Under ObamaCare, if states don’t act to establish their own exchanges and rules, the federal government will do ti for them.) The governor’s amendment would restrict the proposed and mandated health insurance exchanges from covering abortion services, except in cases of rape, incest, or when the life of the mother is at risk. Without such change to the bill, pro-life citizens will be coerced into funding the unethical destruction of human life. His amendment also would prohibit insurance companies from selling optional riders that cover those same abortion services. Typically, NARAL went ballistic (see the Washington Post VIrginia Politics Blog, a Post news article and the Richmond Times-Dispatch; we’re quoted in all three), although the amendment reflects decades-old federal policy under the Hyde Amendment.

Now, the General Assembly must accept the governor’s amendment at next Wednesday’s veto session. During this year’s General Assembly session, similar health insurance abortion funding opt-out language was passed by the House of Delegates twice with overwhelming majorities, but was defeated in the Senate. The Senate voted on a procedural motion, at the end of session, to strike a bill almost identical to Governor McDonnell’s language. It succeeded on a 22-18 party line vote. Since the governor’s language strictly is a policy vote, not a procedural vote, we hope to urge at least two pro-life Democrats to support the amendment.

Of course, this is nothing new. Whether it is a widely-passed bipartisan House bill or a governor’s amendment, the Senate remains the body that blocks nearly every pro-life effort, and has done so for several years. Over the last several days, The Family Foundation has mobilized citizens across Virginia to contact key senators so that they know Virginians want this amendment passed. It is clear that it will not be until the Senate reflects the values of Virginia that we will see many victories. The opportunity to make those changes is quickly approaching, as all 40 Senate seats are up for election in November.

We believe the key to sustaining the amendment lies with five key senators: Fred Quayle (R-13, Suffolk), John Watkins (R-10, Midlothian), Roscoe Reynolds (D-20, Martinsville), Chuck Colgan (D-29, Manassas), and Phil Puckett (D-38, Tazewell). Contact these senators now and urge them to vote yes on Governor McDonnell’s abortion funding opt-out amendment for health insurance exchanges on HB 2434.

You can contact them by calling their district offices (numbers below) or by clicking on their names for their e-mail addresses:

Senator Quayle: 757-483-9173

Senator Watkins: 804-379-2063

Senator Reynolds: 276-638-2315

Senator Colgan: 703-368-0300

Senator Puckett: 276-979-8181

Governor Bob McDonnell today gave the national Republican response to the weekly presidential radio/Internet address. After thanking our military personnel for its bravery in Libya and humanitarian assistance in Japan, as well as its ongoing operations in Afghanistan and Iraq, he went after Washington for its unsustainable spending and debt, and the increasing costs of Medicaid, which is rapidly accounting for as much as a fifth to a quarter of states’ budgets. He then cited Virginia as an example of balancing budgets through spending reductions. He also keenly noted that while Washington liberals were in a tremendous hurry to push through ObamaCare (it became law one year ago this week), which will add more to the national debt and state obligations, it is dragging its feet in determining its legality by blocking, stalling and delaying the legal process, costing us yet more millions of tax dollars. Governor McDonnell concluded by enumerating proposals by Republican governors that actually would reform health care without the new mammoth and oppressive bureaucracy that is ObamaCare.

“It’s also unconstitutional. … But now, the very same administration that was in such a rush to pass the bill is in no hurry to find out if it’s legal. … Shockingly, the Obama administration opposes an expedited appeal to the Supreme Court.”

Okay. Maybe not so shockingly.