NLA BRIEF National Lawyers Association
Vol. 8, No. 3
Oct.-Dec. 2011 ECONOMICS & LAW
Riots, Food Stamps and the Decreasing Liberties From Governmental Dependence By John Farnan, Esq. n early August, our TVs, smart phones and electronic tablets brought us stories and images of vicious, senseless and opportunistic rioting and looting in London. Ostensibly, the rioting started after a reputed gang member and alleged drug dealer, Mark Duggan, was shot by police who claimed to be returning his gunfire which arose when they tried to arrest him. Some left-wing pundits and politicians tried to put a political, class warfare or socio-economic spin on the rioting and plundering, blaming it on the capitalist system leaving segments of British society with little or no real economic opportunities. But much of the governmental austerity cuts to programs, whose recipients felt obliged to better their circumstances by smashing store fronts to make off with flat-panel TVs and designer clothes, are planned cuts that have not even happened yet. Although the rioting and looting reportedly started in a largely Black area, Whites participated openly in the looting as well. Thus, one is hard pressed to lay the blame on a particular race, religion or ethnic community. So, what else is at play here? An interesting article in The Daily Caller written by Benjamin Cumming seems to have hit the proverbial nail on the head: "….Criminality it may be, but pure and simple it is not. While cuts in government spending are not the cause of this monstrous show, government has helped cause it. For weakening community bonds and undermining personal responsibility, the top-down government expansion that has gone on for years must be held partially responsible for the riots. "Young people in London are angry that provisions and services have been taken away, which has left them feeling abandoned, disillusioned and without futures, but this does not follow from spending cuts. It is the opposite. The problem is that state spending has been and continues to be used to fund misguided pro-
grams of social engineering, creating a system of services so centralized and impersonal that it fails to facilitate social order and detaches youths from the society around them, rather them bonding them to it. "A government that gives you everything is one that can take it all away." "Benevolent social institutions cannot be imposed by a central authority. They can only emerge through the willing consent of individuals in communities. Indeed, in the clear absence of government authority, Londoners are coming together to help each other and stop the riots…." Britain has one of the most benevolent social welfare systems available in the world. The poor and disenfranchised get housing, food, wage, pension and educational subsidies that are the envy of the Far Left in American politics. But, those generous subsidies come at the high cost of huge and constraining taxes that would cause consternation amongst the Right, and even Libertarians, in American politics. These are tough economic times here in the
USA. We have uncommonly high and persistent unemployment and under-employment, news that the federal government's deficit goes up by several millions of dollars every minute, and many college and university students graduating with few job opportunities in their fields of study. Our law firm gets some incredibly good resumes, (Continued on page 6)
In This Issue
1....................... President's Message 2.........................NLA Media Nook 3.......... America is a Christian Land 3................ Ohio's Conciliation Court 4... Standing Bear Sculpture Display 6.....Pro-Life Victory for Free Speech 7............................. The Round-Up 8..... Marriage Law Digest Highlights 9......... Spotlight: Richard Browning 10............... U.S. Constitution Facts
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NLA Media Nook onstrates that despite UNFPA’s touted mission to fight gender discrimination, the agency deliberately refrains from taking a position on sex selective abortion. UNFPA officials told her privately this is because they are 'in a bind' since, as one demographer working with UNFPA put it, ‘the right to abort remains UNFPA’s ‘priority issue.’ “Hvistendahl cites a 2010 internal staff memo warning UNFPA country officers to stay away from the 1995 UN Beijing statement on women that condemned 'prenatal sex selection and female infanticide' and to avoid associating the practice with human rights….. “Fear of the A-word, Hvistendahl concludes, has ‘immobilized the very people who should be crying oppression.’” —Catholic Family & Human Rights Institute “Unnatural Selection reads like a great historical detective story, and it’s written with the sense of moral urgency that usually accompanies the revelation of some kind of enormous crime.” —New York Times “Brave, well researched and imminently controversial…. From the distant vista of the West, where we don’t really consider what it would mean to have an only son who can never find a mate, the unbalanced sex ratio in Asia may seem like relatively small news. This remarkable book goes a long way to bringing the pain and the urgency of the issue home." —Globe and Mail
Unplanned: The Dramatic True Story of a Former Planned Parenthood Leader's Eye-Opening Journey Across the Life Line | Abby Johnson | $22.99 | SaltRiver “When Johnson quit her job as the director of a Planned Parenthood clinic in Texas, the media went wild; lawsuits were filed; prolife advocates rejoiced. Now this former clinic director reveals the details of her dramatic move from abortion rights advocate to ‘the right side of the fence’ and the prolife movement. “Johnson began as a volunteer, moving through the ranks until becoming director of the Bryan, TX, clinic. Then she witnessed an ultrasoundguided abortion, and she changed. 'I was taking a new stand, beginning a new life,’ she says of her move to the other side. This emotional account reveals Johnson's remarkable journey through prochoice thinking, two abortions, her love/hate relationship with prolife advocates outside the clinic, and her eventual understanding of abortion. "Prolife advocates will salivate over her story, abortion rights advocates will be skeptical, but those who oppose abortion will find inspiration, education, and emotion. Johnson offers a well-planned, well-written account that will touch nerves on both sides of the issue”. —Publishers Weekly Bookline “The true value of Unplanned is its ability to show us every facet of the abortion debate: the abstract ideas, the politics, the business, the emotions, the relationships it alters, and the heart-wrenching act itself. Johnson has experienced them all, and her work as a pro-choice advocate demonstrates the tension between the three planes of the issues—beliefs, language, and personal experience—and the difficulty of trying to reconcile them…. “Compassion is also a central theme…. Johnson takes great care to emphasize that many clinic colleagues are people who sincerely believe in assisting those in need and who struggle with their sense of purpose. “This book does not leave us feeling neat and tidy, as though all differences are solved and loose ends tied. Quite the contrary: The path from pro-choice to pro-life advocate is paved with pain, betrayal, and uncertainty. Unplanned provides a candid glance into the hidden corners of the debate that so often elude our conversations.” —FirstThings.com
The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts | Bryan A. Garner | $55 | Oxford University Press "Good legal writing wins court cases. It its first edition, The Winning Brief proved that the key to writing well is understanding the judicial readership. Now, in a revised and updated version of this modern classic, Garner explains the art of effective writing in 100 concise, practical, and easy-to-use sections. "Covering everything from the rules for planning and organizing a brief to openers that can capture a judge's attention from the first few words, these tips add up to the most compelling, orderly, and visually appealing brief that an advocate can present. "Throughout, he shows how to edit for maximal impact, using vivid before-and-after examples that apply the basics of rhetoric to persuasive writing. Filled with examples of good and bad writing from actual briefs filed in courts of all types, The Winning Brief also covers the new appellate rules for preparing federal briefs. Constantly collecting material from his seminars and polling judges for their preferences, the second edition delivers the same solid guidelines with even more supporting evidence. "Including for the first time sections on the ever-changing rules of acceptable legal writing, Garner's new edition keeps even the most seasoned lawyers on their toes and writing briefs that win cases. An invaluable resource for attorneys, law clerks, judges, paralegals, law students and their teachers, The Winning Brief has the qualities that make all of Garner's books so popular: authority, accessibility, and page after page of techniques that work. If you're writing to win a case, this book shouldn't merely be on your shelf—it should be open on your desk." —Amazon.com "All lawyers who rely upon written argument in their practices should have a copy of the book close at hand." —New York Law Journal
Unnatural Selection: Choosing Boys Over Girls and the Consequences of a World Full of Men | Mara Hvistendahl | $26.99 | PublicAffairs “A new book has raised hackles among abortion advocates about just how much the UN Population Fund is to blame for more than 160 million missing girls in Asia: aborted in the quest for sons. “Unnatural Selection [is] one of the most consequential books ever written in the campaign against abortion’ according to a Wall Street Journal review. “While conservatives hail the book’s breakthrough research, Hvistendahl’s fellow progressives haggle over its findings….Hvistendahl ably dem2
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America is a Christian Land Governed by Christian Principles
By Colonel Ron Ray, USMC (Ret.)
read with interest a July 4, 2011, CNN.com article by Kenneth Davis, author of Don’t Know Much About History. Ironically my primary concern is the historical inaccuracy of its title, “Why U.S. is not a Christian Nation…” (see http://bit.ly/nMLaq5). Yes, Mr. Davis, America’s real history makes clear that the civil government was to be separate from the government of the church; however, America’s law order was unquestionably founded in the Old and New Testaments. While individuals were not compelled by the force of government to participate in any state-sanctioned church, there is no man above the law and the law order was not founded in the Islamic, Buddhist, Jewish, etc., traditions but upon the Bible.
It is impossible to reconcile Davis’ statement with the fact that as a matter of law, fact and history, the U.S. Supreme Court found America to be a “Christian Nation” in at least four separate cases between 1844 and 1931, just prior to the current age of “enlightened” legal activism or what Harvard Law School historian Raoul Berger called, “Government by Judiciary?” The most important opinion of the four decisions is the long-delayed and frequently reconsidered Church of the Holy Trinity v. United States authored in a unanimous opinion (9-0) by Associate Justice David J. Brewer who, incidentally, was born of missionary parents in China. Brewer and the Supreme Court, including the eight Justices who joined him in the unani-
mous opinion of 1892, actually researched back 400 years to 1492 and the first official document, or Organic Utterance. (This document of civil government was a public document—not just a historic letter—and looked at state, local and national “organic utterances” from 1492 to 1892.) In their opinion the justices essentially held that: “From the discovery of this continent to the present hour, there is a single voice making this affirmation… that this is a Christian nation….We find everywhere a clear recognition of the same truth.” It is true that unique American notions of the free exercise of religion and religious liberty were only possible because of the Constitutional emphasis on limited government, free (Continued on page 5) enterprise,
Ohio’s Conciliation Court: Marriage Saving Through Legal Process
By Kevin Senich ew people around this country are aware that Ohio is a pioneer in court proceedings designed to effectuate conciliation of marital controversies. An entire chapter of the domestic relations code in Ohio is dedicated to just that proposition. Its official title is “Ohio Revised Code (ORC), Title 31. Domestic Relations–Children, Chapter 3117. Conciliation of Marital Controversies.” The original statutes for this chapter were enacted in 1969, so the idea has been around a long time. With the often-cited figure of 30 percent of divorcing couples being reconcilable, one can understand a docket crowded with husbands and wives all too willing to try every last option before finally terminating their marriages. The procedure operates in this way: Before or during the pendency of any divorce, annulment or legal separation action, one or both of the spouses may file a petition in an Ohio county court to preserve the marriage through reconciliation, or to amicably settle any issue between the spouses to avoid further litigation. The ORC provides a form for that petition with a checklist of all that is needed to file.
The clerk of courts is required to have blank forms available and instruct employees of the court in assisting the public in the preparation of petitions. Significantly, the statute provides not only that no fees can be charged for filing a petition, but that no fees whatsoever can be charged by any officer for the performance of any duty associated with conciliation. Finally, to protect the privacy of the parties, all conciliation case files are closed and can only be opened “upon written authority of the conciliation judge.” (ORC 3117.05) The domestic relations court itself can transfer a divorce to the conciliation judge at any time during the pendency of the case whenever the judge assigned in the divorce court determines that such a transfer “may prevent dissolution of the marriage or disruption of the household.” Where “the dissolution of the marriage” and the breakup is a statistical certainty in any divorce action in Ohio, the court would have virtual absolute discretion to transfer any di-
vorce case to the Conciliation Court. Under the statutory scheme, the domestic relations court can do this even if neither of the spouses has filed a Petition for Conciliation. (ORC 3117.08(A)) Effectively, the court can file the Petition for the parties.
“Marriage, not just divorce, needs its day in court.”
The effect of divorce on children is an express consideration in Ohio’s Conciliation of Marital Controversies. Whenever a minor child’s welfare may be affected by the parents’ controversy, the conciliation judge must entertain any petition properly brought before him or her. Written in a time before the effects of divorce on children led us to understand that all children are “affected” by their parent’s controversy, the statute stops short of allowing children to file petitions for conciliation on their parents’ behalf. Nevertheless, it (Continued on page 4)
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Ohio’s Conciliation Court is clear that a domestic relations court certainly could transfer a divorce to conciliation in the best interest of a child minimally to avoid “disruption of the household.” (ORC 3117.08) The most important and effective feature of Ohio’s conciliation law is the provision for requiring immediate stay of all other actions, pending or prospective upon the filing of a conciliation petition. Those other actions remain stayed until any order from a conciliation judge expires. (ORC 3117.07) Orders from the conciliation judge are effective for no more than thirty (30) days, unless the parties consent to a longer effective period. (RC 3117.06(E)) Hearings in the Conciliation Court differ greatly from those in the Domestic Relations Court. Hearings are held within thirty (30) days of filing; they may be convened at any time or place in the county; they are held in private; they are conducted “as informally as possible,” if both parties are not represented, counsel for one party is excluded; and if experts are recommended by the court, they are provided at the parties’ expense, but only with the parties’ consent. (ORC 3117.06) The Ohio Conciliation Court is as close to a panacea for saving marriages on the brink of divorce as any procedure ever enacted into law. The uncounted thousands of would-havebeen-divorced people who have benefited from
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this procedure to go on to lead strengthened and productive married lives undoubtedly thank every day those wise legislators of some 40 years ago. Those legislators understood a profound truth: Marriage, not just divorce, needs its day in court. Would that this were the happy ending to this short essay. At great risk of offending my readers, I must confess that the Conciliation of Marital Controversies in Ohio has one problem. Unfortunately it is not a small one. As author and native Ohioan, I must apologize. The Conciliation Court in Ohio…sort of… well…does not exist. Those uncounted thousands really are uncounted because, much to my disappointment and the best of my knowledge, no county in Ohio has ever seated a conciliation judge. ORC 3117.01 states in pertinent part: Chapter 3117 of the Revised Code is applicable only in counties in which the court of common pleas determines that social conditions and the number of domestic relations cases in the county render the conciliation procedures provided necessary to proper consideration of such cases or to effectuate conciliation of marital controversies. (ORC 3117.01) Despite the rising divorce rate, the free-falling marriage rate, the out-of-wedlock birthrate approaching 40 percent, custody and support
problems that leave too many mothers in poverty and too many fathers in jail, and the absolute devastation with which all of the above “affects” children…. despite all this, no Ohio county has ever instituted ORC Chapter 3117. When will social conditions render the conciliation procedures "necessary”? The Conciliation of Marital Controversies has long existed in Ohio, but only on the pages of the Ohio Revised Code. It has waited in silent obscurity for over 40 years for some audacious individual to file the extraordinary writ in a court of appeals, to force the hand of indifference by calling the question for Ohio judges: “Yeah” or “Neigh” for Ohio families. NLA member Kevin Senich is a practicing attorney and principal of Kevin J. M. Senich, LLC and concentrates in the areas of family law and civil litigation. He is admitted to practice in all the courts of the State of Ohio, several federal district courts, and the U.S. Court of Appeals for the Sixth Circuit, among other jurisdictions. Kevin has appeared on radio shows, spoken locally and nationally on topics related to divorce law and its effect on marital relations and fathers’ rights, and addressed committees of the Ohio Legislature on divorce reform. He is a former committee member of the family law sections for NLA and several bar associations. He received his BA from the University of Michigan and his JD from Cleveland-Marshall College of Law of Cleveland State University. A version of this article originally appeared on the website of the Coalition for Divorce Reform (www.divorcereform.info).
New ‘Standing Bear’ Sculpture On Display in Nebraska Courthouse O n September 16, 2011, an unveiling ceremony was held for the bust of Ponca Chief Standing Bear at the Roman L. Hruska U.S. Courthouse in Omaha, Nebraska. U.S. Supreme Court Justice Clarence Thomas was a distinguished guest at the event. The statue was anonymously donated to the Nebraska State Bar Foundation, and is on permanent loan to the U.S. District Court for the District of Nebraska. (The loan agreement will be renewed every two years.) It will be displayed on the first floor of the Hruska Courthouse. The 1879 Standing Bear trial was a landmark civil rights case decided in the U.S. District Court for the District of Nebraska. Chief Standing Bear sought a writ of habeas corpus, protesting the government’s refusal
to allow his Ponca band to return to former tribal lands in Nebraska. U.S. District Judge Elmer Dundy was the first federal judge to find that an Indian was a person within the meaning of the law, and so had a right to seek a writ of habeas corpus. He also ruled that the government could not force Standing Bear and his followers to return to the Indian Territory in Oklahoma. Eventually Standing Bear and his followers returned to their old reservation in Nebraska, where Standing Bear died in 1908. To learn more about Standing Bear, please read the review of the book Standing Bear is a Person on MercatorNet.com (visit http://bit. ly/rlW4nG). For more information about the statue, contact Cindy Lilleioen at (402) 475-1042. 4
Photo courtesy of Nebraska State Bar Foundation.
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America is a Christian Land and self-government to ensure liberty and justice for all. Civil government could not compel faith, worship or communion, nor determine approved forms of baptism. Signers of the Declaration of Independence each held that “it was a self evident truth” that there was “a Creator,” “that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness,” and that our system of laws and civil government was based upon the “Laws of Nature and of Nature’s God.” “Law” means fixed in every language, and changing law is an oxymoron. We were a nation of laws; but sadly, soon to be a nation of men, having lost liberty and justice. In support of these organic utterances made from the highest Court in the land is the overflowing fountain of thousands of political sermons delivered during the founding era. (Read The Political Sermons of the American Founding
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Nation, a book by Justice Brewer , there is a complete copy of the Church of the Holy Trinity Church vs. United States case. Over nearly two years of consideration and deliberation, the Court cited 66 precedents. In the 1962 Supreme Court case Engle v. Vitale the Court cited not a single precedent for its revolutionary notion that somehow prayer in a “Christian Nation” whose national motto is “In God We Trust” is inappropriate in a government school. Justice Brewer received many invitations to speak around the country after the publication of his aforementioned book. That’s why his friends, aware of the impossibility of his responding to such an outpouring of requests, suggested he deliver a series of lectures which could be made available in booklet form to those interested in this historic 1892 decision. That booklet has been reprinted by American Vision (www.americanvision.com) over the last 10 years. Under the archives section of the American 
“We are raising a generation of historical illiterates. This ignorance is dangerous, particularly to American liberty….” Era covering the era of 1730 to 1805; edited by Ellis Sandos and reproduced by the Liberty Fund, a secular publishing company in Indiana.) While it may be politically correct today to proclaim otherwise, it is impossible to support the fundamental inaccuracy of Mr. Davis’ article as it denies what was so often officially recognized from both civil and church institutions. America’s founders were those who “with a firm Reliance on the Protection of Divine Providence…mutually pledged…our fortunes and our sacred honor” signed The Declaration of Independence, our founding charter, and recognized our Creator four times as the source of rights, liberty, form of government, and foundation of our society, as a “self-evident truth.” The surprising victory at Yorktown against the most powerful army and navy in the world, recognized as “miraculous” by many British officers, secured our independence and liberty. It provided a basis for a nation with limited powers of civil government, and separated the government of the church from the civil government. This history is no longer taught in our institutions of higher learning. In fact, most lawyers, pastors, educators and students know less about why America’s national motto is “In God We Trust” than ordinary citizens do. In the back of United States: A Christian
History Restoration Project at the website (www. firstprinciplespress.org) of First Principles Press is a memorandum (http://bit.ly/q12qDA) summarizing the four specific Supreme Court cases with references and a brief exposition of each one. The historical, legal, and factual meaning of America’s official status as a “Christian Nation,” is well laid out by Benjamin F. Morris in his seminal work The Christian Life and Character of the Civil Institutions of the United States. (That excellent sourcebook also has been reprinted by American Vision.) It was originally published in 1864 and remained in print for many decades thereafter. The Honorable Daniel J. Boorstin, who was Librarian of the Library of Congress from 1975 to 1987, authored The Image: A Guide to PseudoEvents in America (1961). He observed something that far few understand: “Americans live in a world of pseudo-facts, which is created for them by their own media.” Similar points were made by the distinguished, Pulitzer-winning historian David McCullough, particularly when he gave his Smithsonian/Library of Congress National Book Fair keynote speech on Oct. 12, 2002, in which he was introduced by the then Librarian of Congress James Billington. McCullough declared that: “We are raising 5
a generation of ‘historical illiterates.’ This ignorance is ‘dangerous,’ particularly to American liberty….We face a foe today who believes in enforced ignorance--we don’t.” The General Assembly of the Commonwealth of Kentucky wrestled with suppression of America’s history because of its rich and abundant references to God, Divine Providence, the Creator (see http://bit.ly/oNGqy3). Kentucky acted to correct this suppression in 1992. Tennessee passed the same law in 1993. (The bill can be viewed www.firstprinciplespress.org). Even Time Magazine reported on the Presidential Prayer Breakfast at the Mayflower Hotel . The senior leaders of the Executive, Congressional and Judiciary branches were all present at this event. The last speaker, Chief Justice Earl Warren, said: "I believe no one can read the history of our country," he said, "without realizing that the Good Book and the spirit of the Saviour have from the beginning been our guiding geniuses…. Whether we look to the first Charter of Virginia…or to the Charter of New England…or to the Charter of Massachusetts Bay…or to the Fundamental Orders of Connecticut…the same objective is present: a Christian land governed by Christian principles….” Serious “undemocratic changes” to America’s foundation have occurred without “the consent of the governed.” But our true American origin is clear and upheld in our institutions, and serves as the source of our great liberties which patriots celebrate every Fourth of July. Let us never forget the origin of our freedoms, lest we lose them. We are “One Nation Under God” and not a nation of men. Colonel Ronald D. Ray, USMC (Ret.), was a Deputy Assistant Secretary of Defense during the Reagan Administration and served on presidential commissions during the George H.W. Bush Administration. Now a practicing attorney in Kentucky, he also is a volunteer for First Principles Press, publisher of works of enduring significance about our nation and its founding principles. www.firstprinciplespress.org; 502.241.5552 Vidal v. Girard’s Executors, 43 U.S. 126132 (1844), Church of Jesus Christ of Latter Day Saints v. United States, 136 U.S. 1 (1890), Church of the Holy Trinty v. United States 143 U.S. 457 (1892), U.S. v. MacIntosh 283 U.S. 605 (1931). View pdf summary of the cases at http://bit.ly/nfqG8f, on website of First Principles Press.  Church of the Holy Trinity v. United States; http://supreme. justia.com/us/143/457/case.html.  David J. Brewer, The United States: A Christian Nation, American Vision, 1996, pp.75-89.  http://www.nationalcenter.org/cc7252.htm  Time Magazine, “Breakfast in Washington,” Feb. 15, 1954. 
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Significant Victory Won for Free Speech
Ensures Constitutional Rights of Pro-Life Protesters in Maryland Judge Richard D. Bennett has ruled that local police violated seven pro-life demonstrators' constitutional rights while peacefully participating in a "Face the Truth" display along a Maryland highway. Judge Bennett ruled that the decision of the Maryland State Police to order pro-life demonstrators to leave Harford County, Maryland, when motorists complained about the demonstration clearly violated their First Amendment rights, and the MSP violated the Fourth Amendment when they arrested the pro-lifers for their failure to obey an unlawful order.
The Court also found that any reasonable officer would have known that both the order to leave the county and the subsequent arrest were unconstitutional. The plaintiffs' First and Fourth Amendment claims against the Troopers will proceed to a jury trial for the assessment of damages only. In addition, the Plaintiffs will go to trial on their claim that MSP violated the First Amendment when they arrested pro-lifers for exercising their First Amendment right to call for an end to legalized abortion. "This is a terrific victory on the merits,
with the court holding, as a matter of law, that the MSP wrongly arrested the protestors without probable cause for failing to obey an unlawful order to leave Harford County, thus violating their First Amendment rights," said Pat Gillen, Thomas More Society special counsel who represented seven of the pro-life demonstrators. —Reprinted with permission from Christian Newswire; originally published July 14, 2011. NOTE: Several groups worked together to ensure this notable legal victory: American Catholic Lawyers Association, Thomas More Society, and Alliance Defense Fund.
President's Message (continued from page 1) on a daily basis, and many law grads just can't get a legal-related job. Juxtaposed to these hard problems is political gridlock from career politicians, who seem more interested in building their own constituencies and campaign chests than in solving the mess. The only seemingly safe job these days is a government job. But, the government's reach goes beyond the employment sector. The latest statistics, from May 2011, show that a whopping 45.8 million Americans now rely on food stamp programs to help put food on the table. Many users of the program are working in menial jobs or only part time because they can't get full-time work. That statistic should be ringing alarm bells. One of every 5 or 6 Americans now needs governmental assistance. No one begrudges our fellow citizens from taking such assistance if they truly need it. No one wants to see anyone go to bed hungry in America.
"A government that gives you everything is one that can take it all away." But, if we don't collectively turn around the economic mess soon, or if it worsens or even stays the same for a prolonged period, the danger is that we could end up with a generation of citizens growing up "on the dole" as they have in Britain. Such dependency on govern-
ment strikes at the heart of what has made America a technological, economic, political, cultural and military superpower; namely, the individualistic, selfstarting, entrepenurial, self-reliant, "get the government out of my way so I can do it myself" people. Politicians on the Left in America don't mind such an outcome at all. The more the people rely on the government or work for the government, the more they are apt to continue voting for liberals who will do anything to preserve, expand and enrich government programs, government employment rolls, and their Left Wing unions. Thus, the vicious circle of dependency continues and grows. Where does it end? Can the Left turn America into a western European social welfare state? They should be careful what they wish for, as the normal unemployment rates in such countries has been high above that of the USA— even before the onset of the Great Recession we are mired in. Moreover, an increase in dependency on the government comes hand in hand with a decrease in individual liberties. For a government that gives you everything is one that can take it all away. Perhaps that is why you eventually saw shopkeepers and neighborhood watch groups 6
in England form to stand up with shovels, bats and boards to guard their businesses, homes and neighborhoods from looters. They had no guns. The government had taken them all away years ago. Remember that the next time the liberals try to disarm the citizenry here. What does this mean for us? As lawyers, we must be increasingly vigilant, especially in these dire times, to protect our citizens' individual liberties lest we someday see London-type rioting and looting here in America. A good start would be electing leaders who recognize that the genius of America does not derive from masses being dependent on government, but rather from masses being free of it. NLA President John G. Farnan is an attorney with the Cleveland law firm of Weston Hurd LLP, and specializes in Litigation and Appeals.
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The Round-Up: Other News & Updates In this column, various organizations provide information about their recent activities they believe may be of interest to NLA members.
Thomas More Society, (312) 782-1680, www.thomasmoresociety.org
Founded in 1997, the Thomas More Society (TMS) is a national public interest law firm that exists to restore respect for life in law. Based in Chicago, it defends the sanctity of human life, the family and religious liberty in courtrooms across the country, from local trial courts to the U.S. Supreme Court. When the State of Illinois severed its historic support of Catholic Charities’ adoption and foster care services, solely because the Charities do not recruit unmarried couples to become foster parents, the Thomas More Society was asked by four Catholic dioceses to go to court and protect the religious freedom of their Charities. When a new Indiana statute denying funding to Planned Parenthood and other abortion providers and mandating that abortion providers inform women that “human physical life” begins with fertilization, was attacked as illegitimate, 60 pro-life members of the Indiana legislature asked the Thomas More Society to represent them as “friends of the court,” and we filed briefs on their behalf in defense of their statute. When Catholics and other Christians were arrested for peaceably praying on Notre Dame's campus property in protest of the University’s commencement invitation to President Obama, the Society vigorously defended the pro-life advocates against trespass charges, eventually winning dismissal of all charges and an acknowledgement by the University of the “deep commitment” of the defendants.
Liberty Counsel, www.LC.org
Liberty Counsel (LC) is a nonprofit litigation, education and policy organization dedicated to advancing religious freedom, the sanctity of human life and the family. On May 10, 2011, Mat Staver, Founder and Chairman of Liberty Counsel and Dean of Liberty University School of Law, became the first person to argue against ObamaCare at any federal court of appeals. Liberty Counsel also has the distinction of litigating the first private
lawsuit against ObamaCare, filed the same day it was signed into law on March 23, 2010. If Congress can force individuals to buy and employers to provide government-defined health insurance, then the federal government can become the CEO of every company and a dictator to every individual! But, more than the ObamaCare law is at stake in this important lawsuit. The future of the country, our liberty, and the principles of limited government are all on the line in this crucial case. Staver also recently spoke in Jerusalem at the Southern Wall excavation site outside the Old City, introducing several people who were honored for their courage during the “Restoring Courage” international event hosted by Glenn Beck. The awards were given in the categories of Faith, Hope and Charity to recognize individuals who displayed extraordinary courage and whose actions in the face of adversity bring hope for peace in the Middle East. Staver commented: “America has been proIsrael, and America will always remain pro-Israel. As Christians and Americans, our history and heritage is inextricably linked to Israel and the Jewish people. The foundation of Western civilization was birthed in Israel, and it is the survival of Western civilization that is at stake today. While the people of America stand with Israel, our government must pursue policies that support Israel. We must move the U.S. Embassy from Tele Aviv to Jerusalem, the rightful capital of Israel. We must ensure that all our policies support Israel.”
The Rutherford Institute, 434-978-3888, www.rutherford.org
The Rutherford Institute, a nonprofit civil liberties organization headquartered in Charlottesville, VA, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated. Institute attorneys litigate a broad range of constitutional issues, from free speech, religious freedom and parents’ rights violations to due process, zero tolerance and prisoners’ rights, among others. In recent months, The Rutherford Institute has come to the defense of several street preachers charged with violating noise ordinances. In Marcavage v. City of Winchester, Institute attorneys filed a free speech lawsuit on behalf of a group of street preachers prevented from using a microphone to express their religious beliefs at a street festival in Winchester, VA. Attorneys argued in their complaint that the noise ordinance used to silence the group is unconstitutionally vague and overbroad, pro7
hibiting “unnecessary noise,” and sounds that “annoy” or “disturb” others. Institute attorneys pointed out that the Virginia Supreme Court struck down a Virginia Beach noise ordinance in 2009 similar to the Winchester law in Tanner v. City of Virginia Beach. In a similar case, Institute attorneys recently secured a victory for Don Karns, a street preacher in Williamsburg, VA, who was cited for using a small amplifier to preach in a public street. The case was dismissed in the city’s General District Court after Institute attorneys pointed out that the municipal code used to charge Karns contains an exception for “religious activity or expressions.” The Rutherford Institute is always seeking new partners in the fight for our freedoms. If you or someone you know are interested in assisting with pro bono cases, please email staff@ rutherford.org.
Life Legal Defense Foundation, (707) 224-6675, www.lldf.org
Life Legal Defense Foundation (LLDF) is a non-profit public interest law firm whose mission is to give innocent and helpless human beings, particularly unborn children, a trained and committed defense against threat of death, and to support their advocates in the nation’s courtrooms. Here are highlights from LLDF cases over the past few months: LLDF settled two civil rights actions filed in Orange County, CA, against Cypress College. The settlement on behalf of young pro-life advocates includes significant changes to the school’s free speech policy and monetary damages. The plaintiffs are now welcome to share the message of life on the Cypress College campus. The Ninth Circuit Court of Appeals issued its opinion in Hoye v. Oakland, the case in which Pastor Walter Hoye challenged an Oakland, CA, ordinance as an unconstitutional infringement of free speech. In the 3-0 opinion the court stated, “We agree with Hoye that there are grave constitutional problems with the manner in which the City has understood and enforced its Ordinance.” LLDF believes that the decision possibly narrows the controlling U.S. Supreme Court case on pro-life speech, Hill v. Colorado. As written, Hoye may force courts to consider the bad behavior of abortion supporters when faced with a constitutional challenge to a bubble law like Oakland’s. LLDF will present its first seminar on pharmacists’ rights (Continued on page 10)
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Marriage Law Digest Case Summary Highlights The following information was selected from the July-August 2011 issues of The Marriage Law Digest, edited by William C. Duncan. It is jointly published by the Marriage Law Foundation (www.marriagelawfoundation.org), and the Institute for Marriage and Public Policy (202.216.9430). Reprinted with permission.
— CASE SUMMARIES — IN RE MULLEN, Docket Number 2011Ohio-3361, Ohio Supreme Court, July 12, 2011, (shared custody petition by unmarried partner of child’s mother) The former partner of a child conceived via artificial insemination sought joint custody of the child. A magistrate proposed that the partner be given joint custody. The juvenile court, however, ruled that “the evidence did not conclusively demonstrate that [the mother’s] conduct created a contract that permanently gave partial custodial rights of the child” to the partner. The court noted that the relevant legal question was whether “a parent’s conduct with a nonparent created an agreement for permanent shared legal custody of the parent’s child.” If such a contract exists, the court should then examine whether joint custody is in the best interest of the child. The court noted the documents the partner relied on to establish the mother had given her custodial responsibilities had all been revoked,
that the mother had never signed a formal shared-custody agreement, and that the father “had regular contact with the child…is listed on the child’s official birth certificate and has formally acknowledged paternity.” The court concluded the evidence supported the juvenile court’s finding that the mother had not relinquished sole legal custody. The dissent argued that the mother had just changed her mind and that Ohio law should adopt a test created by a Wisconsin court for recognizing a non-parent as a psychological parent. ________________________ DICKERSON V. THOMPSON, Docket Number 511849, New York Appellate Division, Third Department, July 22, 2011, (dissolution of Vermont civil union) One of the partners to a Vermont civil union sought to have the union dissolved in New York court. The trial court concluded it did not have authority to grant the dissolution. The appellate division said “the absence of a judgment granting a dissolution” would make the partners “interminably bound,” thus preventing them from marrying or entering a civil union. The court concluded that “the dissolution of a civil union falls squarely within the scope of Supreme Court’s broad equity jurisdiction.” ________________________ CATHOLIC CHARITIES V. ILLINOIS, 2011-MR-254, IL Circuit Court, Seventh Circuit, Aug. 18, 2011 Catholic Charities, which had contracted with the state for forty years to provide adoption and foster care services in successive oneyear contracts, was notified earlier this year that Illinois was not going to renew its contract “because the Plaintiff would not provide those services to unmarried cohabiting couples” which “was in direct violation of the Illinois Religious Freedom Protection and Civil Union Act.” Both Catholic Charities and Illinois sought summary judgment in the case. The court ruled for the state, holding that Catholic Charities “do not have a legally recognized protected property interest in the renewal of its contract for foster care and adoption services.” The court reasoned Catholic Charities was not required by the state or in statute to perform the services, but that the contract was in8
stead “a desire of the Plaintiffs to perform their mission as directed by their religious beliefs.” The fact that the contract had continued so long did not give Catholic Charities a property interest in continuing it. LEGISLATION California Assembly Bill 1349 (signed by Governor Aug. 5, 2011). Sperm donors cannot voluntarily admit paternity without an agreement with the mother pre-conception and a presumed parent can challenge any other paternity admission within two years of a child’s birth. ________________________ T.V. V. NEW YORK DEPT. OF HEALTH, 2011 NY Slip Op 06229, NY Appellate Division, Second Dept., Aug. 9, 2011 A married couple who could not have a child used their genetic materials to create a child through in vitro fertilization and had the fertilized eggs implanted in a gestational carrier. After the child’s birth, the hospital submitted a birth certificate with the gestational carrier listed as mother listed but no father listed. The gestational carrier and the couple petitioned to have the genetic mother and father listed on the birth certificate. The trial court declined as to the mother but eventually ordered the father’s name on the birth certificate. The genetic parents filed a new complaint saying New York’s parentage law “violated the Genetic Mother’s rights to equal protection under the New York and United States Constitutions, since the Genetic Father was able to obtain an order of filiation from the court while ‘deny[ing] that same protection and enforcement of the same fundamental liberty interest to the similarly situated genetic and intended mother.’” They also argued that the law violated the Due Process Clause if it was understood to “preclude the Genetic Mother from establishing her parental relationship to the child.” They argued that “individuals have a fundamental right to privacy, which includes the right to bear and raise children” which “encompassed situations in which parents were compelled to use advances in medical technology in order to conceive and raise their own biological child and that there was no compelling state interest for interfering with this right” and that new reproductive technologies made “the presumption that the woman who gave birth was the (Continued on page 9)
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Case Summary Highlights (continued from page 8) mother of the child was rendered rebuttable.” The state Department of Health argued New York law did not allow for an order of maternity and the “parenting contract” between the couple and the carrier was “void and unenforceable. . . even when entered between friends with no compensation.” As to the constitutional claim, the DOH said the law “served an important governmental objective of having an accurate identification of the birth parents on the child’s birth certificate.” The trial court held that the couples could have used “an alternative remedy . . . in the form of an expedited adoption.” The appeals court noted a legislative task force had recommended that if genetic and gestational others agreed that the former should be the legal mother, the law should allow for that eventuality.
The court also noted that in an earlier case involving a same-sex couple, the state’s highest court said family courts “had the authority to determine whether a female is a child’s parent” so it held supreme courts had that authority as well. The court said the trial court has authority to “make a declaration as to whether the Genetic Mother is the legal mother of the subject child.” The court said that parentage on a birth certificate can be modified by court order so adoption is not necessary here. The court further said “there is a distinction between males and females in the birth process” but that the relevant issue was “whether there is an impermissible gender-based classification between parents after the birth of the child.” Thus, the court concluded the trial judge should hear the constitutional claim of the plaintiffs.
Update Your Records With NLA's New Contact Info To better serve its members, NLA has retained JMS Association Management of Denver, CO (effective August 1, 2011). With this change comes a new mailing address for NLA: 333 South Allison Parkway, Suite 204, Lakewood, CO 80226. The new contact email is: firstname.lastname@example.org. Ms. Josie Griffiths is our account representative at JMS.
Member Spotlight: Richard Browning R
ichard Browning remembers attending the first NLA convention, held in St. Louis in 1993. Like many other NLA members there, he had joined our association in response to the ABA’s "unacceptable pro-choice stand" it had taken in 1992. "I helped organize a group of about 80 lawyers who took an ad in the local paper publicly denouncing the ABA for its radical position," he recalls. Richard is a NLA member for many reasons. "I've been continuously impressed by the quality and caliber of the attorneys I've met who belong to this fine organization," he says, and is "a staunch supporter" of the views which served as the foundation for the group's establishment--and continue to guide it. During his term as NLA president in 2006-2007, Richard says he was constantly amazed by the unselfish willingness of other members to help him and other board members on a variety of projects. "My tenure as president was definitely made possible by the team effort of any and all members who were asked for assistance." Looking back upon NLA's many accomplishments, its Declaration of Independence Project is one which he terms "a great success." Not only does it teach school-age children about the basics of their government, it gives them the knowledge to think for themselves. It also helps them analyze different political views with an independent perspective-one based on a thorough understanding of the core documents upon which this country was founded and the intent of the Founding Fathers." Richard believes it's essential for NLA to exist and thrive to ensure that "the debate in the public square" continues to be on key pro-life issues.
"In this era, we are constantly fighting against a climate of situational ethics, and an institutional lack of fortitude in being willing to stand up and speak on moral absolutes," he notes. "The NLA fulfills this role in an admirable manner, and needs to continue to do so, because society continues to need to hear it." Richard was born and raised in Mobile, Alabama. He earned a B.A. in Philosophy and Sociology from Spring Hill College (and was Valedictorian of its Class of 1977), and a JD degree from the University of Alabama in 1980. Alabama has been "home" for Richard his entire life, except for the four years he spent in the Navy. While in the military he primarily served as Criminal Defense Counsel for Navy and Marine Corps personnel charged with various offenses. In 1984 he left the Navy and began his private legal career. After working for three different law firms, Richard opened his own firm as a sole practitioner in 1999. Today, about 80 percent of his practice involves plaintiffs workers' compensation claims, while about 20 percent of his work concerns general plaintiffs personal injury litigation. In addition to being listed in Best Lawyers in America (Workers' Compensation Law, 1995 to the present) and Super Lawyers 2011, he is a lifetime member of the Million Dollar Advocates Forum. Richard's volunteer work doesn't end with NLA. He is a former president and board member (seven years) at a local Catholic high school, as well as a member of Alaw-Life, a group of Alabama pro-life lawyers. Richard and his wife, Rosemary S. Browning, have been married for 34 years. They have "one only slightly spoiled" four-year-old granddaughter, Olivia, and four children: Ginny Ford (a hospital labor/delivery RN), Kate and Andrew (graduates of Ave Maria School of Law who practice with their father's firm), and Maggie (a junior in high school). 9
Fascinating Facts About the U.S. Constitution The U.S. Constitution has 4,400 words. It is the oldest and shortest written Constitution of any major government in the world. ______________________________________ Of the spelling errors in the Constitution, “Pensylvania” above the signers’ names is probably the most glaring. ______________________________________ Thomas Jefferson did not sign the Constitution. He was in France during the Convention, where he served as the U.S. minister. John Adams was serving as the U.S. minister to Great Britain during the Constitutional Convention and did not attend either. ______________________________________ The Constitution was “penned” by Jacob Shallus, A Pennsylvania General Assembly clerk, for $30 ($726 today). ______________________________________ Since 1952, the Constitution has been on display in the National Archives Building in Washington, DC. Currently, all four pages are displayed behind protective glass framed with titanium. To preserve the parchment’s quality, the cases contain argon gas and are kept at 67 degrees Fahrenheit with a relative humidity of 40 percent. ______________________________________ Constitution Day is celebrated on September 17, the anniversary of the day the framers signed the document. ______________________________________ The Constitution does not set forth requirements for the right to vote. As a result, at the outset of the Union, only male property-owners could vote. African Americans were not considered citizens, and women were excluded from the electoral process. Native Americans were not given the right to vote until 1924. ______________________________________ James Madison, “the father of the Constitution,” was the first to arrive in Philadelphia for the Constitutional Convention. He arrived in February, three months before the convention began, bearing the blueprint for the new Constitution.
NLA BRIEF The NLA Brief, the official newsletter of the National Lawyers Association, is published four times a year. Publisher/NLA CEO: Rebecca Messall. Editor: Lisa A. Bastian, CBC. Headquarters address: National Lawyers Association, 333 South Allison Parkway, Suite 204, Lakewood, CO 80226. Phone: (303) 398-7030; (800) 471-2994. Fax: (303) 398-7001. Web site: www.nla.org. BOARD OF DIRECTORS: Tom Brejcha, Chicago, IL; Denis V. Brenan,* Philadelphia, PA; Richard E. Browning,* Mobile, AL; Edward J. Currie, Jr., Jackson, MS; Willam P. Daniel, Flint, MI; John G. Farnan,* Cleveland, OH; Patrick T. Gillen, Ave Maria School of Law; William Maywhort,* Denver, CO; Rebecca Messall,* Denver, CO; William D. Olson,* Grinnell, IA; Ronald D. Ray, Crestwood, KY; Mark C. Rohlena, Denver, CO; Tracey L.F. Trigillo,* Springfield, IL; Joe Wusinich, Downingtown, PA. * = NLA past president. ADVISORY COUNCIL: Prof. Frank Covey, Jr., Loyola Univ. of Chicago; Dean Robert D’Agostino, John Marshall Law School; Prof. Joseph Dellapenna, Villanova Univ.; Assoc. Dean Robert Destro, Catholic Univ. of America; Prof. Joseph L. Falvey Jr., Ann Arbor, MI; Prof. Scott Fitzgibbon, Boston College Law School; Prof. David Forte, Cleveland State Univ.; Edward Gaffney, Valparaiso Univ.; Prof. Lino A. Graglia, Univ. of Texas Law School; William F. Harvey, Prof. Emeritus of Law, Indiana Univ.; Prof. Raymond Marcin, Catholic Univ. of America; Prof. Charles Rice, Notre Dame Univ.; Prof. Richard T. Stith, Valparaiso Univ.; William Valente, Prof. Emeritus of Law, Villanova Univ.; Prof. Lynn Wardle, Brigham Young Univ.; John C. Buckley III, Colorado Springs, CO; Eugene S. Bulso, Jr., Esq., Nashville, TN; James S. Cole, Esq., St. Louis, MO; David C. Drury, Esq., St. Louis, MO; Mary Ann Johanek, Esq., Cleveland, OH; Darwin Johnson, Esq., Kansas City, MO; Denish Mackura, Esq., Cleveland, OH; William R. Mikos, Esq., St. Paul, MN; Thomas Spencer, Jr., Esq., Miami, FL; Helen M. Alvaré, George Mason School of Law.
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to conscientiously object to dispensing drugs harmful to human life, "Do No Harm." Although this seminar focuses on the specific context of the pharmacy, the concepts discussed are analogous and transferable to other medical disciplines. In light of the Obama administrations’ continued attack on conscience rights, the seminar is well-timed.
Are your NLA dues current? If not, join today at one of the full membership levels ($200 and above) and receive our new membership perk: a one year’s subscription to Human Life Review, the country’s premier pro-life journal.
The Oct.-Dec. 2001 issue of NLA Brief, the officail newsletter of the National Lawyers Association.