The ACLU recently filed a lawsuit against Camdenton R-III School District in Missouri, seeking an injunction prohibiting the District from continuing to use a ”sexuality” internet filter.  Alliance Defend Fund filed an amicus brief  in the case and in support of the District, demonstrating that disabling the “sexuality” filter will provide students access to myriad pornographic and sexually explicit websites.  This should come as no surprise, since the “sexuality” filter is designed to block access to websites “dedicated to sexuality, possibly including adult material.”  And it also should come as no surprise that the ACLU is behind this effort, given its former president Nadine Strossen’s questioning of whether pornography even harms kids.  (See page 12 of Strossen’s comments during a debate at Susquehanna University).

Having had their “porn for schoolkids” initiative exposed, the ACLU’s new spin on the Camdenton lawsuit is as follows: “The main argument we are saying in the brief is the school district, like almost every other school district in the country, should go to a reputable software provider who has policies to filter material in viewpoint neutral ways and knows the difference between a human rights campaign and a fetish website.”

Correct me if I am wrong, but isn’t the ACLU threatening litigation against school districts across the country based on their use of virtually every filtering product out there?  Indeed, the ACLU’s website confirms that they have sent letters challenging school districts’ use of filtering software provided by (at the very least) URL Blacklist (which is what Camdenton School District uses), Fortiguard, Blue Coat Systems, and M86 Security.  Our research has shown that each of the web filters the ACLU wants disabled, like the “sexuality” filter used by Camdenton School District, blocks access to pornographic and sexually explicit materials that children simply should not be able to access.  (The letters linked in this ADF press release detail this research).

The ACLU’s claim that they just want Camdenton to use different software is disingenuous at best, given their national campaign against virtually all available web filtering software.

I can’t wait to see the ACLU’s next rationalization for its “porn for schoolkids” campaign.

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ADF has just completed its appeal to the U.S. Supreme Court in a case involving the prolife student club, Rock for Life, at the University of Maryland, Baltimore County.  The case demonstrates the problems with campus “speech codes.”  Many universities have these vaguely worded policies that prohibit students from engaging in things like ”incivility”  or “disrespect” or “intolerance.”  Frequently, these speech codes allow the listeners, and not the intent of the speaker, to determine whether the speaker has violated the speech code.  So, such statements as “abortion is wrong, ” or “marriage is a man and a woman,” or “Jesus Christ is Lord,” can violate a campus speech code if the listeners feel harassed, threatened, offended, or disrespected by those words, no matter what the speaker intended with his words.

At UMBC near Baltimore, the prolife students in Rock for Life experienced the harsh application of “speech codes.”  Rock for Life received permission to display graphic photos of aborted children in an area of campus well traveled by students.  They figured it would trigger debate about abortion among the students if they saw actual aborted babies.   At the last minute before Rock for Life was going to begin its display, university police and university officials moved the prolife display to a deserted area of campus infrequently visited by students – when watching the security video of this area, you would expect to see the occasional tumbleweed blowing through this vacant expanse of campus.

How did the university justify its abrupt order to move the display?  Four overlapping policies regulating student speech.  Several of these speech codes prohibited “emotional harassment.”  And a university official – its attorney – said that he feared students might feel “emotionally harassed” by the display.  Later, he explained that he wanted to protect the students’ “emotional well-being” and prevent them from becoming “emotionally distraught.”  Hence, UMBC moved the display at the last minute.

In court, ADF challenged this ideological exile of prolife speech, as well as the broadly written “speech codes” invoked to justify their actions.  Several federal appeals courts have struck down such vague policies as violating the First Amendment because they give unbridled discretion to government officials to silence unpopular viewpoints and allow them to hide their true reasons for doing so under the vague language of the speech code.  The Rock for Life case has become mired down in some technical issues on whether the prolife students have standing to challenge all of the policies.  We hope the U.S. Supreme Court will grant review and rule that the legal challenge to the speech code can go forward.

But the speech codes at many universities threaten student speech, especially the speech of students advocating unpopular views – nowadays, that frequently means students advocating for life, marriage, or the Christian Gospel.  Speech codes also can “chill” student speech by pressuring them to self-censor their views so that they won’t get in trouble.  Policies that “chill” the free exchange of ideas on campus are also unconstitutional.  If you are experiencing any such problems, please contact us at the Alliance Defense Fund.  A university campus should truly be a free marketplace of ideas.

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     Wednesday the Senate Judiciary Committee heard testimony on a bill to repeal the federal Defense of Marriage Act (DOMA). ADF attorney Austin Nimocks testified against the bill and did an excellent job explaining the purpose of marriage in having children raised in the best social environment possible, one consisting of the child’s own biological mother and father who are united in marriage, and the importance of maintaining that common understanding of marriage in federal law. DOMA was signed into law by President Clinton in 1996 after being approved by huge majorities in both houses of Congress.

However, Democrats, including those on the Senate Judiciary Committee, now oppose DOMA, even though many of them voted for it in 1996 because they now support redefining marriage to include same sex couples.  Although the Democrats have a 53-47 majority in the Senate, it is uncertain whether this repeal could overcome a filibuster in the Senate, and it would not be approved by the Republican majority in the House of Representatives.  On Monday, President Obama said that he supported repeal of DOMA.

DOMA has two major parts.  One part allows states to decline to recognize a marriage consisting of a same sex couple that was legally entered into in another state.  The other major part of DOMA defines marriage only as one man and one woman for purposes of federal law.

I was able to assist Austin and watch the DOMA hearing at the Senate Judiciary Committee.  I offer several observations:

  1. The hearing hid the fact that the DOMA repeal could force all states to recognize same-sex marriages.

The Democrats who orchestrated this hearing cleverly directed its focus away from one of the major aspects of the DOMA repeal legislation that many would oppose – DOMA repeal would wipe out the provision that says states are free to decline to recognize same-sex marriages legally obtained in another state.  We would see same-sex couples who have obtained a marriage license in one of the few states where it is legal, come to one of the many states with a state DOMA, and argue in court that the second state must recognize their same-sex marriage license, even though same sex marriage is not legally recognized in the second state.

This gets into a complicated area of constitutional law concerning “full faith and credit.”  Generally, full faith and credit means this: If a court in State A enters a judgment, for example, that Mary owes Sam $2000, then Sam can go to State B to get a court order to take some of Mary’s assets there to pay the judgment.  State B cannot refuse to honor the court decision from State A under the Constitution’s Full Faith and Credit Clause. But how does that apply to marriage,  because a marriage license is not a court order?  Generally, states do not have to recognize licenses obtained in another state.  So, if someone in State A obtains a driver’s license, or a license to practice law, or a realtor’s license or a marriage license, State B has the discretion whether to recognize that license or not.

Whether the second state will recognize the license depends on what kind of license we are talking about. Most states generally recognize marriage licenses entered into in other states, so a man and a woman do not have to get married again when they move to another state.  In contrast, states generally require people to get new driver’s licenses and licenses to practice law if they move to another state. Federal DOMA made it very clear that a state recognizing only marriages of one man and one woman would not have to recognize a marriage license from another state obtained by a same-sex couple.  As a constitutional attorney, I am not exactly sure what the repeal of DOMA would mean for this area of law.  States might very well retain the power to decline to recognize marriage licenses from another state, because of the states’ general authority under our Constitution’s system of federalism.

The Senate hearing on Wednesday focused on couples who lived in the five states that have legalized same-sex marriage (Massachusetts, Connecticut, New Hampshire, Vermont, Iowa, and on Sunday, New York, as well as the District of Columbia).  They had legal marriages under state law, but were not recognized under federal law.  However, the hearing barely mentioned that these couples could move, for example, to one of the 30 states with a state constitutional provision defining marriage only as one man and one woman, and challenging that provision.  In effect, this may be an effort to force all states to recognize same-sex marriage.  The hearing would have had a different tone if the Judiciary Committee had focused on this important effect of the proposed DOMA repeal.

    2. Many others besides same-sex couples have problems obtaining federal benefits, and Congress can fix the problems without redefining marriage.  The hearing consisted of a number of people who had obtained a marriage license in one of the states that has legalized same-sex marriage, and how they have had trouble obtaining federal benefits.  For example, one of the same-sex partners dies, and the surviving partner cannot obtain Social Security benefits that a married couple consisting of a man and a woman could obtain.

But the hearing did not explain that others have the same problem.  For example, a single person who is older and on Social Security benefits cannot pass his benefits to anyone  else when he dies, but a surviving married person could obtain the benefits of his or her deceased spouse.  Repealing federal DOMA would not help this single person pass his benefits to his niece or nephew.  His money would simply go back to the U.S. Treasury.  If a man is a federal worker and he cares for his sick grandmother, repeal of federal DOMA will not help him add her to his federal health insurance and he will not receive any Social Security money when she dies, because they are blood relatives who cannot marry. A woman who takes care of her adult brother with Down’s Syndrome must pay federal tax on the insurance coverage her employer extends to her brother.

Repeal of federal DOMA will do nothing to ease these unnecessary tax burden the brother and sister described above cannot legally marry anywhere.  The benefits issues should be addressed separately and Congres should enact solutions that help everyone with the problem, not just same sex couples.

Also, several legal challenges to federal DOMA are in courts around the nation.  The most advanced cases are in Massachusetts, pending before the U.S. Court of Appeals for the First Circuit in Boston.

Links:
1. Austin Nimocks written testimony
2. The entire DOMA hearing on c-span.
3. Youtube video of Austin Nimocks testimony and Q&A

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Author: ADF Senior Counsel Brian Raum

Something is rotten in the states of America… And it isn’t the state of marriage.

Despite a relentless pop-culture, a Big Media and education establishment-led propaganda campaign, and flawed polls screaming that marriage as we know it is doomed in the U.S., support for this foundation of our society is actually alive and well.

For those who believe the support for marriage as a union between one man and one woman has gone asunder in America, we direct you to a scientific survey sponsored by the Alliance Defense Fund and completed by Public Opinion Strategies last month.

When all the numbers were tallied up from what is believed to be the most extensive national research survey of its kind to date, it was confirmed that 62 percent of Americans believe that “marriage should be defined ONLY as a union between one man and one woman.”  A majority (53 percent) of Americans strongly agreed with this sentiment, and a slim 35 percent disagreed.  This comprehensive study of 1,500 Americans’ attitudes toward marriage included research from 14 focus groups from coast to coast.

If this isn’t enough to dispel the misguided claims and misrepresentative polls posturing that marriage in America is passé, please note that this survey is a strikingly accurate reflection of official polling results from the ballot box on this issue – putting the troubled leftist pipe dream in peril.  We’re talking about election statistics spanning from 1998 to 2008, when voters from 31 states were asked to support or reject a state marriage amendment.

California, back in the ancient days of 2008, when an ultra-right-wing presidential candidate received 137 percent of the state’s vote, a marriage amendment passed, sure.  Oh wait, that’s not what happened.  Despite being outspent by $3.5 million and lacking the support of every media, entertainment, cultural, union, educational, and political power structure, marriage proponents were able to pass Proposition 8 by four percent, with 52 percent of the vote.

Note also that Smurf-Blue Maine voted in 2009 to reverse a legislatively imposed redefinition of marriage and restored marriage in the state as it’s always been understood – the union of husband and wife – nothing more, nothing less.

In the 31 states that voted on a marriage protection amendment to determine whether the definition of marriage should stay as a union between a man and a woman within their borders, 63 percent of more than 63 million voters tipped the scales at “yes.”  Only 37 percent said “no.”  That’s nearly 40 million voters affirming marriage to some 23 million rejecting it – a decisive victory for the American family.

But what about the remaining states without such an amendment protecting marriage? (The federal government, along with 45 states, has preserved the definition of marriage either through constitutional amendment or statute.)  If would-be marriage re-definers are so confident, why do they oppose “taking it to the polls” and putting this very public policy decision in the hands of the public?  Some judges have already beat voters out of their right to decide the issue.

In Iowa, the voters reacted to the state supreme court’s imposition on same-sex “marriage” on the state by – in unprecedented fashion – throwing three of the justices off the court.  Iowans would likely have ejected all seven had they been given the opportunity.  Of the five states that issue “marriage” licenses to same-sex cohabitants, none have had marriage redefinition approved by the people, with three states having it forced on them by the courts.

So, in a day and age when it appears as if marriage is about to be swept under by a relentless wave of an anti-marriage culture, all we need to do is grab our [election] boards and say “surf’s up!”  Remember, we’re riding above the wave – not below it.

The University of California-Davis will be correcting its unconstitutionally discriminatory definition of discrimination to ensure that all students are protected under its policies.  The official word came last night in a letter from Assistant Vice-Chancellor Rahim Reed to ADF Allied Attorney Tim Swickard, one of nearly 2000 allied attorneys across the country that give their time to defend religious liberty alongside us at ADF.  UC Davis had defined “religious/spiritual discrimination as:

Religious/Spiritual Discrimination – The loss of power and privilege to those who do not practice the dominant culture’s religion. In the United States, this is institutionalized oppressions toward those who are not Christian.

Thus, under the UC Davis definition discrimination against Christians was not “religious discrimination.”  Reed’s letter identifies the UC Davis document as merely “aspirational,” an odd half-defense of this policy to which no university should “aspire” (except perhaps the aspiration to dominance of Christianity on campuses – I’d be for that).

Universities (or government generally) should not be in the business of identifying Christians as unworthy of the same protections that they provide to other faiths.  We are very happy to see that UC Davis has removed the problematic definition from its website and has pledged to eliminate or amend it appropriately.  This is good news.  Universities can be ideological and recalcitrant on issues like this – even when they’re clearly wrong – and so it is no small thing that UC Davis moved so quickly to resolve this problem.

But ultimately this issue isn’t about the specific definition of “religious discrimination” at UC Davis.  As ludicrous as the definition was, it doesn’t establish that UC Davis is the worst campus for free speech or religious liberty in America.  There are plenty of outstanding candidates for that honor.  UC Davis simply reduced to writing what seems to be the de facto approach on many campuses where Christian students often face treatment from student governments, faculty, or the administration that students of other faiths never seem to face.

Perhaps I’m wrong.  But I somehow doubt that Jonathan Lopez would have been told to “Ask God What Your Grade Is” in response to a speech class assignment where he shared his views about marriage if he had discussed those views from a Muslim perspective.  I do not believe that Julea Ward would have faced a theological grilling (including efforts by administration officials to persuade her that she was theologically incorrect) and ultimately expulsion over her decision to refer two individuals seeking same sex relationship counseling due to her values conflict if her values were informed by a faith other than Christianity.  And I don’t believe that UC Hastings College of the Law would have ever derecognized a Muslim student group unless it would promise to allow Christians and Jews to become its leaders (and in Alpha Delta Chi v. Reed we have proof that the policy was applied to Christians and not to other religious groups).  Christians on many campuses around the country live with the sense that the protections and sensitivities that are granted to other religious faiths do not extend to them.

The issue here isn’t the text of UC Davis’s “religious discrimination” definition, but the culture on campuses that would ever allow such a definition to get through multiple levels of scrutiny and end up on a website of a university department specifically responsible for ensuring that the campus is inclusive of all faiths.  And that culture is one that is not unique to UC Davis.  Kudos for the policy change.  Now let’s get to the root of the problem.