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NLA BRIEF National Lawyers Association

Vol. 9, No. 2

Abdicating the Rule of Law

Second Quarter 2012 CONSTITUTION

By James S. Cole

The Obama Administration and some state officials are ruling by executive decree. Would the Founding Fathers have approved?


he Attorney General of the United States has again abdicated his duties; he has notified Congress that he will not defend  a duly enacted law in the courts. He did this in February of last year, too,  when he stepped back from upholding the federal Defense of Marriage Act. This time, he refuses to defend a military and veterans’ benefits law, 31 U.S.C. §§ 101(3) & (31), that defines “surviving spouse” and “spouse” to refer to persons of the opposite sex. The Attorney General is not doing this on his own; he specifically says the notification reflects the policy of the President. I wrote last year that this policy is a mixed blessing, in that by abdicating his responsibilities, Mr. Holder may open the door to a more vigorous and more effective defense of the laws in the courts. The same holds true this year. But I am concerned with a more fundamental problem, and that is how this Administration and like-minded state officials flout the legislatures in our country. In recent years, chief executives of the states and the federal government appear to have abandoned the very concept of representative

governance by their legislatures in favor of rule by decree. They have adopted an attitude that if they are right in their policies—and they always believe that they are—then they will forge ahead with them no matter if they receive the authorization of the legislature or not. They will even forge ahead if instructed otherwise by their legislatures. This concern goes beyond the problem of delegation-of-legislative-power-run-wild that was described on MercatorNet recently by Angelo M. Codevilla. Here are a few examples, culled from hundreds that could be cited. Illinois. In 1997, Illinois enacted the Health Care Right of Conscience Act, providing perhaps the broadest protection of health-care conscience rights of any jurisdiction in the United States. Nevertheless, in 2005, the thenGovernor of Illinois ordered his Administration to promulgate a regulation forcing pharmacists to sell contraceptive and abortifacient drugs or face disciplinary proceedings. A member of the Governor’s cabinet wrote a letter to a Chicago newspaper stating, “We are telling pharmacies... they can’t let an individual pharmacist’s personal beliefs delay or hinder a woman’s ability to have her prescription for birth control filled....” After six years of litigating against the State of Illinois,  pharmacists finally won a permanent injunction in the trial court. Incredibly, the At-

A Report From the Legal Trenches

torney General of Illinois has appealed. Missouri.  In Missouri, a  2011 statute on funding certain bio-science research and startups, which  Missouri Right to Life pointed out could allow funding of embryonic stem-cell research, was enacted with a clause that it would not go into effect unless another specific bill was enacted during the same session. The other bill was not enacted. Nevertheless, the Governor of Missouri announced that he would implement the bio-science funding program anyway, despite the clear language of the statute that it was not to go into effect. A judge recently issued a permanent injunction against the Governor. Incredibly, the Attorney General of Missouri has announced he will appeal. Obama Administration.  On December 19, 2011, the President of the United States issued an Executive Order instituting a “National Action Plan on Women, Peace, and Security.” This Plan describes how the United States will put more women into diplomatic and other official efforts to avoid wars, to bring a woman’s point of view to efforts to maintain peace, and to ensure women are not forgotten in ameliorating the suffering and damage caused by armed conflicts. Of course, “reproductive health,” which for this Administration in particular means abortion services, is not forgotten, either. (continued on page 8) The Plan proudly CAMPAIGN FINANCE

Campaign Finance and Political Speech Pornography T In This Issue By Steven A. Klenda he acronym of the technically “non-partisan” group Colorado Ethics Watch (CEW, pronounced “sue”) unintentionally reveals its true purpose. Under the noble guise of good government, it sues conservatives and Republicans for violating campaign-finance laws. CEW’s lawsuits can be quite creative. So creative that less noble minds might suspect that CEW’s suits are more about political advantage than good government. Imagine that. CEW recently pulled off a political feat that is nearly impossible to imagine. It united Republican fundraisers with supporting parties as politically diverse as the Colorado Education Association,

the Colorado Bar Association, and the Institute for Justice to oppose its attempt to make the First Amendment’s protection of political speech more ambiguous. If successful, CEW would have had much more latitude to...(yes)...sue. Fortunately, the Colorado Supreme Court, in Colorado Ethic Watch v. Senate Majority Fund, unanimously rejected CEW’s attempt to undermine the First Amendment. This decision protects robust public debate by eliminating uncertainty that CEW used to sue political opponents. Perhaps more interestingly, though, it illustrates how the activist left uses campaign finance/First (continued on page 2) Amendment lawsuits

1...........Abdicating the Rule of Law 1............ Campaign Finance Report 3...........................NLA Media Nook 3....Court Protects Abortion Images 3..........House Passes Ryan's Budget 4.... Marriage Law Digest Highlights 5..... Pro-Life Legal Writing Contest 6.........Open Letter to the President 7......... The Round-Up: Other News




NLA Media Nook

ceed in the exciting world of politics. Ben Wetmore uses his unique and varied experiences working in politics at all levels, in several states and for different political organizations, to offer advice and concrete examples of both successes and failures. Getting a Job in Politics is essential reading for beginners seeking to join the political industry.” —book’s self-description “If you are looking for work whether in the political arena or the private sector the insights Ben brings forth will help you survive and grow in your job. This is a great book and great information. Ben’s insights are praiseworthy and realistic. It’s a real handbook in any political junky’s bookcase.” —The Hon. Steve Stockman (R-TX), former Congressman

Death of a Christian Nation | Deborah Dewart | $14.99 | AMG Publishers | Kindle E-book: $7.99 (after May 25) “[Dewart]….recognizes that when civil law promotes immoral actions and anti-religious discrimination, the death of a nation is at hand. She correctly perceives that a righteous nation must be built on righteous laws, and that in turn, on the unchanging character of a righteous Creator. In the name of liberty and rights, America is becoming enslaved to puerile and ignoble ‘rights’ that eat at the roots of the liberty tree and are a rejection of the principles that gave life to this great country. For a ‘mess of portage’ we are selling our birthright as a people. I recommend her book as a cure for wrong thinking and correction to put us back on the right path envisioned by our Founders.” —from book’s foreward written by H. Wayne House, Th.D., J.D. “Here is a timely book that gives to Christians large amounts of useful biblical and legal wisdom as they face the growing attacks against expressions of biblical, social and cultural morality in the public square in once ‘Christian’ America….” —Dr. Peter Jones, Truth X-Change

Endowed by Their Creator: A Collection of Historic American Military Prayers 1774 – Present | First Principles Press | $12.95 | http://firstprinciplespress.org “This collection of illustrative historic prayers draws from 74 prayer books printed and distributed both at private and public expense, and distributed within the military throughout the years. “And at a time when prayer is being disregarded and treated more like a ceremonial formality in military and non-military circumstances, this collection of prayers is useful, educational and historic, both in the military and civilian worlds. It allows anyone of any station or faith the opportunity to draw from its pages a prayer associated with an historic occasion or historic figure. “As the voices of presidents and military heroes recorded in this book have continuously maintained, America and her fighting forces must not lose touch with our nation’s understanding of the ‘Creator’ named in the Declaration of Independence, and of His broad and great endowment of our ‘One Nation Under God.’” —from publisher’s description

Getting a Job in Politics, and Keeping It | Ben Wetmore | $14.95 | CreateSpace “Getting a Job in Politics, and Keeping It provides a blueprint for landing entry-level positions and climbing the ladder in political jobs. Explaining the basic steps to land jobs with campaigns, political organizations, nonprofits, government, the media, and other groups, Getting a Job in Politics lays out a clear plan for anyone to enter and suc-

Campaign Finance and Speech Pornography (continued from page 1) to achieve political goals, and the degree to which and the tenacity with which it contorts settled law to transform the First Amendment from a shelter for speech into an arena for attorneys. Amendment 27 and “Magic Words” Express Advocacy Colorado voters passed Amendment 27 to the state constitution in 2002, the same year that Congress passed the Bipartisan Campaign Finance Reform Act, which is more commonly known as McCain-Feingold. Amendment 27 imposed severe limits on direct contributions to candidates. Amendment 27’s key is its definition of “expenditure,” which it defined as money “for the purpose of expressly advocating” for a candidate’s election or defeat. Amendment 27 also defined a “political committee” as a group of two or more persons that made “expenditures” in excess of $200 to support or oppose a candidate’s nomination or election and capped contributions to political committees at $500 per contributor per election cycle. By defining “expenditure” in terms of “express-

ly advocating,” Amendment 27 followed the U.S. Supreme Court’s 1976 decision in Buckley v. Valeo. Although the First Amendment says that “Congress shall make no law…abridging the freedom of speech,”  Buckley  allowed direct contributions to candidates to be limited to prevent the danger or appearance of quid pro quo corruption. Buckley defined funding for political speech that could be limited with a bright line. Only direct donations to candidates or for speech that “expressly advocated” for a specific candidate by using “magic words” such as “vote for,” “vote against,” and “support,” could be capped. Funds for speech that just mentioned issues without expressly advocating for candidates could not. Buckley’s  line was intentionally both bright and under-inclusive so that it would not discourage political speech. The line was sharp, objective, and understandable to avoid uncertainty and vagueness. To avoid over breadth, it included no more speech than necessary to address  quid pro quo corruption. Because the issues and candidates are interrelated, Buckley recognized that its distinc-


tion between express advocacy and other advocacy could easily dissolve in practice. This was a necessary price to protect political speech. Issue Ads and “Functional Equivalence” Buckley’s speech-protective under-inclusiveness spawned “issue ads” that highlighted a candidate’s position on a specific issue but avoided magic words. No magic words; no limits. Both  McCain-Feingold  and Amendment 27 took aim at these ads by adopting disclosure requirements for a new category of political speech, an “electioneering communication,” which is a broadcast ad that clearly identifies a candidate and runs shortly before a primary or general election. The U.S. Supreme Court ultimately upheld these requirements only to the extent that an “electioneering communication” was the “functional equivalent of express advocacy,” i.e., an ad was “susceptible of no reasonable interpretation other than as an appeal to vote for or against a particular candidate.” This “functional equivalent” test was not itself vague only because it applied to ads that already met (continued on page 6)




Court Protects Graphic Abortion Images


‘Any restriction must be carefully scrutinized’


he state supreme court in Wyoming has issued a ruling protecting the graphic abortion violence photographs and images that prolife protesters use to shock people into a debate on the procedures used to kill the unborn in America. The ruling came today in a conflict between Operation Save America and the town of Jackson, which went to court and without notifying OSA obtained an order that the pro-life organization could not exercise members’ First Amendment rights in parts of Jackson last year.

A large part of the town’s concern was the “large photographs” of “disfigured and aborted fetus images.” According to a report from Jackson Police Lt. Robert Gilliam, “the group has consistently demonstrated throughout the town of Jackson showing the same graphic photographs. The group has refused repeated requests from me and other law enforcement officials to remove these graphic photographs. This came after police received several hundred phone calls, emails, personal visits and face to face complaints from citizens who see

House Passes Ryan’s Budget

the photographs as obscene and offensive.” The city ultimately obtained an ex parte hearing, where a judge issued a temporary restraining order silencing the pro-life message without notifying OSA. The ex parte order resulted in Rev. Chet Gallegher and Pastor Mark Holick, two of the protesters, ultimately being arrested for violating that order. The organization, whose members hail from a number of states, dispatched protesters to Jackson in May 2011 to raise awareness to the abortion clinic run by Brent Blue. (continued on page 5) BUDGET

By Pete Kasperowicz, TheHill.com


he Republican-led House approved Rep. Paul Ryan’s (R-Wis.) budget plan on Thursday, [March 29] by a 228-191 vote, as 10 GOP lawmakers defected and not one Democrat backed the measure. The passage of the Ryan’s blueprint represented a significant political victory for House GOP leaders, who have struggled to pass highprofile legislation in recent months. Democrats ripped Ryan’s resolution, claiming it would end Medicare “as we know it” and predicting it would backfire on the GOP this fall.  This year’s vote was by a narrower margin than the 2011 vote that passed Ryan’s budget 235-193. Four Republicans bucked their party last year. An increase in Republican “no” votes was expected this year, as many have grown frustrated with the party’s inability to achieve more aggressive budget savings, due in large part to opposition in the Democratic-led Senate and the White House. House Speaker John Boehner (R-Ohio) seemed to address that frustration indirectly on Thursday as he praised Ryan for putting forward a budget that represents a “real vision of what we were to do  if we get more control here in this town.” “It’s still a Democrat-run town,” he added. Republicans voting against the Ryan budget were Reps. Justin Amash (Mich.), Joe Barton (Texas), John Duncan Jr. (Tenn.), Chris Gibson (N.Y.), Tim Huelskamp (Kan.), Walter Jones (N.C.), David McKinley (W.Va.), Todd Platts (Pa.), Denny Rehberg (Mont.) and Ed Whitfield (Ky.). Seeking votes, Ryan and other Republican leaders earlier this month opted to lower the spending caps that were detailed in last year’s deal to raise the nation’s debt ceiling. Democrats cried foul, claiming Republicans were breaking

a deal they signed off on. GOP appropriators also grumbled, saying it would be difficult to pass appropriations bills with the lower figures. However, Rehberg was the only Republican appropriator who rejected Ryan’s budget on Thursday. Rehberg, who heads the Labor, Health and Human Services and Education Appropriations subcommittee, is seeking to defeat Sen. Jon Tester (D-Mont.) this fall. Last year, Jones, McKinley and Rehberg voted against the Ryan budget, along with Rep. Ron Paul (R-Texas). Paul, a hopeful in the GOP presidential primary, was not present to vote on the budget this time around. The GOP budget plan again draws a clear contrast between Republicans, who are looking reduce the deficit almost entirely through cuts to federal spending, and Democrats, who continue to push for a combination of spending cuts and tax increases. Republicans spent Wednesday and Thursday arguing that the country is mired in a debt and deficit crisis that demands a serious response. “We are ceding our sovereignty and our ability to control our own destiny as a country when we have to hope that other countries will lend us money,” Ryan said Wednesday. “We’ve got to get this under control.” “If we don’t tackle these debt problems soon, they’re going to tackle us as a country,” the Budget Committee chairman added. Ryan’s budget would cut more than $5 trillion more than President Obama’s proposal, reduce spending in 2013 and 2014 compared to 2012, and revive his proposal last year to turn Medicare into a health insurance supplement program for anyone younger than 55. Ryan’s proposal is more aggressive than Democratic-led budget alternatives that the House rejected Wednesday and Thursday, some of which 3

he disregarded as leaning too heavily on tax increases to reduce the deficit. At the same time, it is not as aggressive as the Republican Study Committee budget, which also failed. Ryan said after the vote that the budget now presents voters with a choice in November. “Now they have two very crystal clear paths from which to choose,” he said. Presidential front-runner Mitt Romney has endorsed the Ryan budget. He said that far from being a hindrance to the GOP nominee, the budget will boost his campaign because it will honestly show what the GOP will do if given the full reins of power in Congress. “People deserve to be spoken to like adults,” Ryan said. Asked about whether the strong vote marks the end of squabbling in the GOP confer-

“If we don’t tackle these debt problems soon, they’re going to tackle us as a country.” ence, Majority Whip Kevin McCarthy (R-Calif.) said healthy debate will continue. “I think it is very healthy that we debate the issues,” he said. The passage of the measure represented a victory for McCarthy, who has struggled to find 218 votes to pass Boehner’s long-stalled transportation bill. Democrats protested the Ryan budget throughout the entire process, warning that it would cut too deeply into critical federal programs. Minority Whip Steny Hoyer (D-Md.) ripped the Ryan budget on the House floor.  “Tragically, the product we will produce today is far less than the sum of our parts in this body,” he said. “It is, I (continued on page 7)




Marriage Law Digest Case Summary Highlights The following information was selected from the February and March 2012 issues of The Marriage Law Digest, edited by William C. Duncan. It is jointly published by the Marriage Law Foundation and the Institute for Marriage and Public Policy. Reprinted with permission.

— CASE SUMMARIES — RICHARDS V. BROWN, 2012 UT 14, Utah Supreme Court, March 13, 2012 A man “sued his former domestic partner” claiming they had “an unsolemnized marriage.” The trial court held he had waited too long to seek the ruling because the couple had not lived together in more than a year. The court of appeals said “termination of cohabitation does not necessarily terminate the relationship” so the man could still bring a claim for common law marriage. The supreme court held a potential common law relationship does not end just because the parties are no longer cohabiting if they still meet the other statutory requirements expressed in the present tense (assuming marital rights, duties and obligations). Thus, the court said the husband should be able to try to prove in trial court that he had a common law marriage. PERRY V. BROWN, No. 10-16696, U.S. Court of Appeals, Ninth Circuit, Feb. 7, 2012 Same-sex couples alleged the California marriage amendment (Proposition 8) violated the federal constitution. The trial court ruled Proposition 8 unconstitutional and suggested the campaign sponsors lacked standing to appeal the decision. The Ninth Circuit panel said the campaign sponsors had standing because California allows official proponents of initiatives to defend them. The panel’s majority said Proposition 8 “stripped same-sex couples of the right to have their committed relationships recognized by the state with the designation of ‘marriage,’ which the state constitution had previously guaranteed them, while leaving in place all of their other rights and responsibilities as partners.” The court said “the designation of ‘marriage’ itself...expresses validation, by the state and community, and that serves as a symbol, like a wedding ceremony or a wedding ring, of something profoundly important” and defined marriage as “the unique recognition that society gives to harmonious, loyal, enduring, and intimate relationships.” The majority said Proposition 8 is “remark-

ably similar” to a Colorado amendment the Supreme Court invalidated in Romer v. Evans “because it ‘carves out’ an ‘exception’ to California’s equal protection clause, by removing equal access to marriage, which gays and lesbians had previously enjoyed, from the scope of that constitutional guarantee.” Although the Colorado law was faulted for being broad, the majority said: Proposition 8 is no less problematic than Amendment 2 merely because its effect is narrower; to the contrary, the surgical precision with which it excises a right belonging to gay and lesbian couples makes it even more suspect. A law that has no practical effect except to strip one group of the right to use a state-authorized and socially meaningful designation is all the more “unprecedented” and “unusual” than a law that imposes broader changes, and raises even stronger inference that the disadvantage imposed is born of animosity toward the class of persons affected. The majority declined to address whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so. The majority said Proposition 8 is not rationally related to purported interests in procreation because it had absolutely no effect on the ability of same-sex couples to become parents or the manner in which children are raised in California because the amendment did not modify other parentage laws. The majority argued: “In order to explain how rescinding access to the designation of ‘marriage’ is rationally related to the State’s interest in responsible procreation, Proponents would have had to argue that opposite-sex couples were more likely to procreate accidentally or irresponsibly when same-sex couples were allowed access to the designation of ‘marriage.’ We are aware of no basis on which this argument would be even conceivably plausible.” The court also noted California law clearly does not recognize a preference for biological parents over other couples. The majority also said: “It is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman.” The court said the amendment could not advance the state’s interest in making radical social change cautiously because it had been enacted after the State had provided same-sex couples the right to marry and because the ban was permanent. The court said Proposition 8 did not affect 4

religious liberty or education. The court then held: “we must infer from Proposition 8’s effect on California law that the People took away from gays and lesbians the right to use the official designation of ‘marriage’—and the societal status that accompanies it—because they disapproved of these individuals as a class.” Further, elimination of the right to use the official designation of “marriage” for the relationships of committed same-sex couples send a message that gays and lesbians are of lesser worth as a class; that they enjoy a lesser societal status, and Proposition 8 enacts nothing more or less than a judgment about the worth and dignity of gays and lesbians as a class. The majority concluded Proposition 8 violated the Constitution’s Equal Protection Clause. The dissent argued Proposition 8 should have been analyzed using rational basis review and said Romer is inapposite because Proposition 8 eliminates the right of access to the designation of marriage from same-sex couples, rather than working a far-reaching change in their legal status so it lacks the “sheer breadth” that prompted the Supreme Court to “raise the inference of animus in Romer.” To the dissent, even if animus was among the motivations for the measure it could still be constitutional “if the measure also rationally relates to a legitimate governmental interest.” The dissent believed Proposition 8 could have been justified by the state’s legitimate interest in responsible procreation and the optimal parenting setting for children. The dissent said “the people of California might have believed that withdrawing from same-sex couples the right to access the designation of marriage would arguably, further the interest in promoting responsible procreation and optimal parenting” so Proposition 8 is not necessarily “’wholly irrelevant’ to any legitimate government interests.”




NLA Board Members Help Establish Pro-Life Legal Writing Contest for Students Two NLA board members—Jason Miller and Ben Wetmore—have established the firstever National Pro-Life Legal Writing Award competition in conjunction with Massachusetts Citizens for Life, a New England pro-life organization. This new annual competition promotes the outstanding work of students who have recently published legal work upholding pro-life views. The author(s) of the winning entry receives a cash award of $750. The 2011 winner, Michael Fragoso from Notre Dame University, published an article in the Notre Dame Law Review about the confiscatory nature of Obama’s proposals to repeal phy-

sician conscience clauses. By forcing doctors to participate in immoral actions, the government was engaging in a taking of the physician’s practice, a loss of livelihood, and years of built-up goodwill that would be the basis for damages. Amy Pedagno of Ave Maria Law School in Florida was chosen as the first runner-up for a soon-to-be-published piece on young women in state foster care, “Who are the Parents? In Loco Parentis, Parens Patriae, and Abortion Decision-Making for Pregnant Girls in Foster Care.” “The beauty of this award is that it rewards those who are advancing the cause of life, people who are out researching, writing and

publishing to save babies by giving great legal arguments to judges who are facing new legal issues,” said Miller, who also serves as a judge for the competition. “As the court continues to face complex bioethical issues, I hope that future award recipients will be recognized for their outstanding work.” The deadline for entries to be considered for the 2012 National Pro-Life Legal Writing Award is November 30, 2012. Visit the website www.massprolife.org or email legalcontest@ masscitizensforlife.org for more information about entry requirements, eligibility, and submission requirements. The 2012 winner(s) will be announced on or before January 15, 2013.

Court Protects Graphic Abortion Images (continued from page 3) Town officials were alarmed that Boy Scouts attending their 2011 annual Elk Fest in the town at the same time might see the images. But the state Supreme Court found that just as speech on issues of public concern is protected, so are those images. “We find that the ex parte [temporary restraining order] was issued in violation of the First Amendment to the United States Constitution and Rule 65 of the Wyoming Rules of Civil Procedure,” the opinion said. The opinion explained that the First Amendment does not protect everything—fraud, defa-

“My children grew up seeing those signs, they understand someone hurt the baby.” mation, obscenity and fighting words are not protected, for example. But it added, “Speech on public issues or matters of public concern ‘are classic forms of speech that lie at the heart of the First Amendment.’…Speech directed at abortion policy is public issue speech.” “The fact that the messages conveyed by those communications may be offensive to their recipients does not deprive them of constitutional protection,” the panel wrote. “As a general matter, we have indicated that in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide ‘adequate ‘breathing space’ to the

freedoms protected by the First Amendment,’” the opinion said. “We find that this level of protection must likewise be extended to the graphic photographs OSA chooses to use in its demonstrations,” the justices wrote. “The Supreme Court has stated it will not expand the categories of speech that receive limited protection, such as obscenity, unless there is a demonstration of a longstanding American tradition forbidding such speech or expressive conduct,” the opinion said. The opinion also found that the streets and sidewalks of Jackson are exactly what is thought of regarding a public forum. Ultimately, the charges stemming from the arrests of the two pastors were dropped, but the appeal was continued to the state’s high court because of the likelihood that the situation can be repeated, since the pro-life protesters plan to return to Jackson in just weeks. Holick, of Spirit One Christian Center, told WND that the group’s activities had been routine—handing out brochures about the issue of life, marching on sidewalks to declare the message and asking residents to pray for the abortion business operator. He said while the images do upset people, they should direct their objections to those who made the events captured in the photographs happen. “Are we more concerned that we’re showing the image, or the fact that the image was produced,” he wondered. “My children grew 5

up seeing those signs, they understand someone hurt the baby.” Town officials did not respond to a WND request for comment. Gilliam had explained that he complained to OSA officials about the images. “The conversations … regarding the graphic signs have been cordial but matter-of-fact like. They acknowledge the signs are graphic and offend most people, but that is their intent. They wish to ‘shock’ the public into taking their side on the abortion debate in this country,” the court ruling noted he said. “The topic of abortion incites like no other issue in this country today. It divides the nation, our religions, our families, our politics and our society. The issue arouses deep passions that find full expression in full an open and public debate that gives all participants the satisfaction of a fair and full hearing,” the opinion said. There also was no evidence that there was a danger of a “breach of peace” and no reason to have the ordered issued in secret, the opinion said. “The town has not met its burden of establishing that the TRO ban was necessary to serve the town’s interest and that less restrictive measures would not have been adequate,” the opinion said. This article was originally published April 10, 2012, by World Net Daily (www.wnd.com) and is reprinted here with permission.




Campaign Finance and Speech Pornography (continued from page 2) the unambiguous, crisp, objective, “bright-line” definition of an “electioneering communication.” The U.S. Supreme Court intended its “functional equivalent” test to be restrictive. But in the creative hands of Federal Election Commission bureaucrats and sympathetic judges, it spawned such a diverse abundance of complex, multipronged tests that the “functional equivalent of express advocacy” became much like pornography: you know it when you see it. Initially, some thought that this functional-equivalent test could be a new, independent limit of political speech that could be regulated. Over time, though, courts properly rejected “functional equivalence” as too vague and overbroad to replace Buckley’s  test for express advocacy. Colorado never wavered from Buckley’s magicwords test for express advocacy. Less than two years before Amendment 27 passed, the Colorado Court of Appeals held that (1) to avoid being unconstitutionally vague and overbroad, the words “advocating for the election or defeat of a candidate” in the statute that preceded Amendment 27 had to be interpreted to mean “expressly advocating for”; and (2) expressly advocating meant using Buckley’s magic words or substantially similar words. The legislative analysis of Amendment 27 similarly explained that its key term, “expen-

ditures,” applied to ads that “specifically urge” a candidate’s election or defeat. Given this background, Colorado law seemed clear. Under Amendment 27, expenditures only included express advocacy, as defined by Buckley’s magic words.


old definition of express advocacy. How? Ignore Buckley.  Claim that the “functional equivalence” test made Buckley  “no longer operative.” Disregard 30 years of cases that establish “express advocacy” as a legal term of art and define “express advocacy” by reference to a dictionary definition of “express” as “unmistakable,” which depends on a listener’s perspective. Recast “express advocacy” to include all speech that is not solely “issue speech.” Assert that the definition of “express advocacy” was unclear when voters adopted Amendment 27 because a subsequentlydiscredited FEC regulation made the definition of “express advocacy” unclear, despite the Colorado Court of Appeals adherence to Buckley just before voters adopted Amendment 27. CEW did all of these things. And more. It’s chance of legal success? Slim, if the First Amendment had vigorous defenders and—as it did—the Colorado Supreme Court followed the U.S. Supreme Court’s lead. But it only takes one court, one time to muddle the law or one judge to plant a noxious and potentially transformative legal seed that might one day sprout into a speech-chilling weed. Besides, legal success may not have been what CEW was after. As supporting briefs by the Colorado Education Association and the Colorado Bar Association argued, political participants of all stripes, including CEW’s ideological allies, benefit from a crisp, bright, and unambiguous line between expenditures on political speech that can be regulated, and those that cannot.

e are women who support the competing voice offered by Catholic institutions on matters of sex, marriage and family life. Most of us are Catholic, but some are not. We are Democrats, Republicans and Independents. Many, at some point in our careers, have worked for a Catholic institution. We are proud to have been part of the religious mission of that school, or hospital, or social service organization. We are proud to have been associated not only with the work Catholic institutions perform in the community—particularly for the most vulnerable—but also with the shared sense of purpose found among colleagues who chose their job because, in a religious institution, a job is always also a vocation. Those currently invoking “women’s health” in an attempt to shout down anyone who disagrees with forcing religious institutions or individuals to violate deeply held beliefs are more than a little mistaken, and more than a little dishonest. Even setting aside their simplistic equation of “costless” birth control with “equality,” note that they have never responded to the large body of scholarly research indicating that many forms of contraception have serious side effects, or that some forms act at some times to destroy embryos, or that government contraceptive programs inevitably change the sex, dating and marriage markets in ways that lead to more empty sex, more non-marital births and more abortions. It is women who suffer disproportionately when these things happen. No one speaks for all women on these issues. Those who purport to do so are simply attempting to deflect attention from the serious religious liberty issues currently at stake. Each of us, Catholic or not, is proud to stand with the Catholic Church and its rich, life-affirming teachings on sex, marriage and family life. We call on President Obama and our Representatives in Congress to allow religious institutions and individuals to continue to witness to their faiths in all their fullness.

The First Amendment Wins Only political voices with the resources to hire attorneys or absorb fines benefit from ambiguity in the First Amendment. Ambiguity allows wellfunded and organized interests to squelch other voices by enforcing (or, better yet, just threatening to enforce) vague legal rules. Public debate becomes less diverse, less robust, and cynically subject to speech-chilling, resource-draining, legal skullduggery. The Colorado Supreme Court deserves kudos for defending (for now) robust political debate in Colorado by keeping ambiguity out of Colorado campaign-finance law. And the Senate Majority Fund and Colorado Leadership Fund deserve similar kudos for thwarting CEW’s attempt to allow the First Amendment to promote skullduggery rather then protect substance. Unfortunately, CEW’s most recent defeat is unlikely to discourage it for long. As its acronym implies, CEW’s purpose is to...(yes)...sue.

CEW Sues the Senate Majority Fund and the Colorado Leadership Fund Legal clarity, though, is often in the eye of the beholder. The Senate Majority Fund and the Colorado Leadership Fund raise funds to help elect Republicans to the Colorado Senate and House, respectively. In the 2008 election cycle both of these groups accepted contributions that exceeded $500, which they could not do if they were “political committees.” To be political committees, they had to “expressly advocate.” But in the 2008 election cycle, none of their communications used Buckley’s magic words or anything similar. The flyer that came the closest said that “Local Leaders endorse Dave Kerber.” What was an enterprising activist to do? Win or lose, a lawsuit would force these Republican funds to divert campaign funds to lawyers, and the controversy might discourage contributors. So, CEW decided to challenge Buckley’s 30+ year-

An Open Letter to President Obama, Secretary Sebelius and Members of Congress:


Helen M. Alvaré, JD Associate Professor of Law George Mason University (VA) *

Kim Daniels, JD Former Counsel Thomas More Law Center (MD)

If you agree with the message of the letter, join the other 26,000 people who have signed it online by visiting the website of Women Speak for Themselves, www.WomenSpeakForThemselves.com. This group endorses the next “Stand Up for Religious Freedom” rally. *Affiliations are listed for identification purposes only. They do not indicate institutional support.


Steven A. Klenda and Mario Nicolais of the Hackstaff Law Group LLC in Denver successfully defended the Senate Majority Fund. This article was published March 19, 2012, at A Line of Sight website (www.alineofsight.com) and is reprinted here with permission.




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.

Liberty Counsel, www.LC.org



Liberty Counsel is a non-profit litigation, education and policy organization dedicated to advancing religious freedom, the sanctity of human life and the family. 

This spring, Liberty Counsel (LC) partnered with Personhood USA to advance legislation and constitutional initiatives declaring that human life begins at conception. An Ohio Planned Parenthood affiliate tried to stop a ballot initiative. LC successfully defended Personhood Ohio, who has now begun collecting the necessary signatures to get the initiative on the November ballot. A similar case is pending in Oklahoma. LC also has filed an Amicus Curiae Brief in Ankrom v. State of Alabama, which addresses the question of whether Alabama’s law against chemical endangerment of children can be applied to the unborn that are exposed to illegal drugs in the womb. LC provided the court with the historical protection for the unborn, dating from ancient Greece until present times. After two years, the Justice Department has now dropped its frivolous case against Mary Susan Pine [president of the non-profit organization FACE Life in Florida] and agreed to pay her $120,000. Attorney General Eric Holder had accused Pine of obstructing the entrance to an abortion clinic in violation of the Freedom of Access to Clinic Entrances Act (“FACE”). Courageous and determined, Ms. Pine was not intimidated, and during the case she continued to counsel women and was successful in saving lives. In addition to sanctity of life cases, LC is committed to protecting religious freedom. Dan-

iel and Sharon Dixon’s religious liberties were threatened when they were evicted and fired from managing a government-subsidized housing facility in Lake City, Florida. The couple was accused of being “too religious” because they had a stained glass picture of flowers hanging in their office that read “Consider the Lilies.” LC represented the Dixons, and secured a settlement of $76,250 from Hallmark Management Company.

Clara, California, on November 17. The speaker is Julia Holcomb, who at age 17 was coerced into aborting the child of Steven Tyler, lead singer of the rock band Aerosmith and current American Idol judge. She tells her story in her memoir The Light of the World: The Steven Tyler and Julia Holcomb Story, published on Life Site News. Today Julia is happily married to her husband of 30 years, and together they have seven children.

Life Legal Defense Foundation, (707) 224-6675, www.lldf.org

Thomas More Society, (312) 782-1680, www.thomasmoresociety.org

Life Legal Defense Foundation (LLDF) is a nonprofit 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.

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.

LLDF recently presented a continuing legal education seminar, “Defending the Free Speech Rights of Pro-Life Advocates (DFS).” DFS will be available online soon, and is approved for three CLE credits by the California State Bar. LLDF filed a Friend of the Court Brief, along with other pro-life legal groups, on behalf of American College of Pediatricians, Christian Medical and Dental Associations, American Association of Pro-Life Obstetricians and Gynecologists, et al, in support of the State of Florida vs. the U.S. Dept. of Health and Human Services—an 11th circuit decision where the lower court characterized the Patient Protection and Affordable Healthcare Act (Obamacare) as “an unprecedented exercise of congressional power.” Florida v. U.S. Dept. HHS, 648 F.3d 1235, 1311 (11th Cir. 2011). The brief exposes an unconstitutional provision in Obamacare that requires enrollees in certain federally approved healthcare plans to pay a separate abortion premium for elective abortions. LLDF’s annual benefit will be held in Santa

House Passes Ryan’s Budget would suggest to you, a product unworthy of the intellect that has been applied to it. “It is a product, indeed, that I think will hurt America, not help America. It is a product that is too much politics and too little policy. It is a product of which I think this House cannot be proud.” “It is a recipe for national stagnation and decline,” Budget Committee ranking member Chris Van Hollen (D-Md.) said Wednesday. “It retreats from our national goal of out-educating, out-

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building, out-competing the rest of the world.” Just before the final vote, the House rejected a mainstream Democratic budget alternative from Van Hollen 163-262, very close to the 166-259 margin seen in 2011 on Van Hollen’s budget. The 23 Democratic votes against the Van Hollen amendment is the same total as last year. Liberal Democrats for the most part were able to bury their reservations about the spending cuts in the August debt deal in order to back a budget based on those cuts. 7

On behalf of local residents and the Missionary Sisters of St. Charles Borromeo, Thomas More Society (TMS) attorneys demanded that the Village of Stone Park, Illinois, put a halt to construction of a $3,000,000 strip club—“Get It”—located only a few feet from the property line and towering over the Sisters’ convent. The village of Stone Park agreed to repeal a non-challenged ordinance similar to the state statute that imposes a 1,000-foot buffer zone between adult entertainment facilities and schools, parks, churches and residential areas. Furthermore, the Sisters never received proper notice the building being constructed was a strip club. TMS sponsored an Easter display on Chicago’s Daley Plaza called. “Jesus in Daley Plaza.” It featured a 19-foot-tall wooden cross, a 10-foottall icon of the Divine Mercy, an interdenominational Sunrise Easter Service, plus a 24 hour/9 day Divine Mercy Novena which ended on Divine Mercy Sunday. This is the sixth year TMS has sponsored an Easter display in this very public Windy City location.

Democratic opponents included most of the Blue Dog Coalition, like Rep. Heath Shuler (DN.C.) and Mike Ross (D-Ark.) as well as some liberals like Rep. Dennis Kucinich (D-Ohio). Erik Wasson and Russell Berman contributed to this article written by Pete Kasperowicz, and originally published March 29, 2012, by www.TheHill.com (part of Capitol Hill Publishing Corp., a subsidiary of News Communications, Inc.) Permission has been granted to republish it here.

Abdicating the Rule of Law announces at one point, “We have supported the development of a toolkit on reproductive health in emergencies, and training modules for NGOs on the prevention of sexual exploitation and abuse (SEA) of beneficiaries.” No U.S. law enacted by Congress is cited as authority for this “toolkit” or the Plan as a whole; the Plan is based, it says, on UN Security Council Resolutions beginning in the year 2000. Obama Administration. In the fall of 2011, the President initiated several Executive Branch initiatives under the rubric, “We Can’t Wait.” Explicitly admitting that Congress refused to enact such programs, the President announced that he and his Administration would initiate them, anyway. Such programs include  “energy upgrades” to commercial buildings toward which the sum of $2 billion of taxpayer money is committed, a commitment of another $1 billion of the public’s money toward the financing of start-up companies, and  expanded federal spending in rural areas, particularly expanding the “rural health information technology workforce.” It seems not to bother the President that the people’s representatives have not approved spending the people’s money for these initiatives and that the federal government is currently gushing out torrents of borrowed money that it does not have any idea how to repay. These examples illustrate how the governors and the President are flouting the will of their legislatures, whether the legislative intent is expressed in enacting bills or in refusing to enact bills. The President’s Attorney-General refuses to defend

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laws that Congress enacted, and the President initiates programs that Congress refuses to enact. Governors issue Executive Orders that contradict the terms of statutes of their state legislatures. I learned in school that the executive branch of government can propose new programs, but it is for the legislative branch to enact them, and then the executive enforces the laws enacted by the legislature. As an adult, my examination of the Constitution of my home state, Missouri, and the Constitution of the United States reinforces what I learned in school. The last couple of decades indicate that the governors and President are not abiding by this arrangement. Who has authorized them to arrogate legislative powers to themselves? “A Right Formidable to Tyrants Only” Perhaps Americans ought to refresh our memories about the principles we have inherited from the Founders of our country. Times have changed since they strove for our independence and freedom, but human nature has not. It is to the Founders’ insights into human nature, and the mechanisms of limited government that they created with human nature in mind, that we owe the freedoms we enjoy more than 200 years later. It was profitable to begin my own review with American Cicero, Bradley J. Birzer’s 2010 biography of Charles Carroll, signer of the Declaration of Independence. As a Catholic, Carroll was actually disqualified before the Revolution from citizenship in his home province, Mary-

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. Designer: Jessica Dittemore. 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; Jason Miller, Lakewood, CO; William D. Olson,* Grinnell, IA; Ronald D. Ray, Crestwood, KY; Mark C. Rohlena, Denver, CO; Tracey L.F. Trigillo,* Springfield, IL; Benjamin Wetmore, Metairie, LA; Joe Wusinich, Downingtown, PA. * = NLA past president. ADVISORY COUNCIL: Helen M. Alvaré, George Mason School of Law, Washington D.C.;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.; Prof. Lynn Wardle, Brigham Young Univ.; John C. Buckley III, Colorado Springs, CO; Eugene N. 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; Denise Mackura, Esq., Cleveland, OH; William R. Mikos, Esq., St. Paul, MN; Thomas Spencer, Jr., Esq., Miami, FL.


land. He could not vote or hold public office. Nevertheless, he contributed what he could, beginning with written public newspaper columns against abuses of the provincial governor. What were those abuses? They began with issuance of a gubernatorial decree that imposed public fees after the Maryland Assembly refused to enact them. Among the principles that Carroll invoked against the governor’s decree was this one: “Fees are taxes [and] taxes cannot be laid out but by the legislature.” Carroll further wrote, “The pursuits of government in the enlargement of its powers, and its encroachments on liberty, are steady, patient, uniform, and gradual.” His campaign against unauthorized executive decrees made Carroll famous throughout the colonies and helped launch the cause of independence in Maryland. Maryland was not unique. The royal governors’ flouting of the people’s legislatures was prominent among the reasons our colonial ancestors finally rose up against the British. In the Declaration of Independence, the recitation of grievances that justified severance of allegiance to Great Britain included the following: He [the King] has refused to pass other Laws for the Accommodation of large Districts of People, unless those People would relinquish the Right of Representation in the Legislature, a Right inestimable to them, and formidable to Tyrants only. *  *  * He has kept among us, in Times of Peace, Standing Armies, without the consent of our Legislatures.  *  *  * For suspending our own Legislatures, and declaring themselves invested with Power to legislate for us in all Cases whatsoever. The current Attorney General’s refusal to uphold the enactments of Congress is bad news for the rule of law in a republic. The expanding practice of governors and presidents to rule by royal decrees that we now call “executive orders,” sometimes even flouting contrary acts of their legislatures, is nothing else than the groundwork for a virtual dictatorship. Unlike the colonists of 1776, we have elections available to cut this process short. “A Prince,” said our Declaration of Independence, “whose Character is thus marked by every act which may define a Tyrant, is unfit to be the Ruler of a free People.” So is such a state governor, and so is such a President. NLA Advisory Board member James S. Cole  graduated from Harvard Law School in 1978 and practices law in St. Louis, Missouri.  This article was originally printed March 12, 2012, by MercatorNet (www.MercatorNet.com) and is reprinted here with permission.

Profile for Bastian Public Relations

Final q2 2012  

Final q2 2012