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DOMA Decision: Obama’s Constitutional Quandary

Posted on March 16, 2011 by | Leave a comment

By Cameron Smith

On February 23, President Obama, in consultation with Attorney General Eric Holder, determined that the Justice Department would no longer defend Section 3 of the Defense of Marriage Act (DOMA) which defines marriage as only between a man and a woman.

The DOMA decision has unleashed a seemingly endless cavalcade of commentary regarding the constitutionality of DOMA and the merits of the traditional definition of marriage. Once again, the culture wars seem to be back in full swing as part of American politics.

Unfortunately, the most concerning aspect of the President’s decision has been conspicuously absent from the public debate. Rather than providing clarity on the executive branch’s perspective on the constitutionality of DOMA, the President has muddied the waters and acted in a manner offensive to any reasonable interpretation of the Constitution.

The President derives executive authority from Article II of the U.S. Constitution and is required to “take care that the laws [of the United States] be faithfully executed.” Article I clearly outlines that “[a]ll legislative [p]owers…shall be vested in [the] Congress of the United States….” Powers of the judicial branch are found in Article III and further clarified by Marbury v. Madison, 5 U.S.137 (1803) which established the power of the Court to review the constitutionality of laws. These clearly defined functions provide a unique separation of powers that has served our country well for over 200 hundred years.

On November 2, 1994, Assistant Attorney General Walter Dellinger issued a memorandum entitled “Presidential Authority to Decline to Execute Unconstitutional Statutes” (Dellinger Memorandum). Some have suggested the Dellinger Memorandum should be instructive when considering the President’s recent actions regarding DOMA.

The Dellinger Memorandum clearly and effectively articulates that the President has ample authority to decline enforcement of legislation that encroaches on the constitutional charge of the executive branch. A number of cases including Myers v. United States, 272 U.S. 52 (1926), INS v. Chadha, 462 U.S. 919 (1983), and United States v. Lovett, 328 U.S. 303 (1946) convincingly reinforce that assertion.

Unfortunately, the Dellinger Memorandum does not effectively speak to the President’s decision on DOMA. At no point has the President or the Attorney General argued that DOMA encroaches on the President’s Article II powers. Rather, the President has made a political decision that DOMA is unconstitutional according to his interpretation of the Fourteenth Amendment which has been interpreted to apply to the federal government.

To make matters more confusing, President Obama has informed the Attorney General that the executive branch will continue to enforce the law even though it will not defend it in court. Essentially, this means that DOMA will be considered law but anyone challenging the constitutionality of DOMA in court will not find the U.S. Department of Justice opposing them.

This decision begs the question why the President who has sworn to “preserve, protect and defend the Constitution” would continue to enforce that which he believes to be unconstitutional.

By declining to defend DOMA while continuing to “enforce” it, the President is trying to have his cake and eat it, too. The President is attempting to heavily prejudice the judicial branch’s constitutional disposition of DOMA without declaring the law unconstitutional from the White House.

If the President has the power to unilaterally declare a statute unconstitutional, then the office wields even more power than previously recognized, subject to the volatility of the election cycle. That power would radically shift the modern understanding of constitutional interpretation which has generally deferred to the Supreme Court as the arbiter of constitutionality in most cases. The President also recognizes that such a shift would mean many other potentially unconstitutional laws such as the individual mandate in the Patient Protection and Affordable Care Act could be dispatched by subsequent administrations.

In any event, the President’s decision on DOMA rests on shaky constitutional ground regardless of the ultimate constitutionality of DOMA itself. If President Obama finds DOMA unconstitutional, then he is failing to execute his constitutional Oath of Office to “preserve, protect and defend the Constitution of the United States.” On the other hand, if he continues to enforce the law, thereby supporting its constitutionality, he must also defend it to ensure that the law is faithfully executed.

While the President may have shrewdly made the most politically expedient decision, the responsibility to uphold the Constitution supercedes politics. President Obama should be called to account by Democrats and Republicans alike, regardless of their views on DOMA.

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Cameron Smith is General Counsel and Legislative Liaison for the Alabama Policy Institute, a non-partisan, non-profit research and education organization dedicated to the preservation of free markets, limited government and strong families, which are indispensable to a prosperous society.

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House of Representatives Will Defend Marriage Bill Abandoned by Obama

Posted on March 15, 2011 by | Leave a comment

By Susan Jones

The U.S. House of Representatives says it will make sure the constitutionality of the Defense of Marriage Act is decided by the courts – not by the president.

In a statement on Wednesday, House Speaker John Boehner (R-Ohio) said an advisory group of House leaders – including top-ranking Republicans and Democrats – has directed the House General Counsel “to initiate a legal defense” of the federal law, which defines marriage as the union of one man and one woman.

The Bipartisan Leadership Advisory Group — a five-member panel consisting of the speaker, majority leader, majority whip, minority leader and minority whip — has the authority to instruct the General Counsel to take legal action on behalf of the House of Representatives.

Rep. Steve King (R-Iowa) applauded the decision to involve the House in pending court cases challenging DOMA.

“President Obama’s decision to abdicate his executive branch responsibility to defend DOMA is a constitutional outrage,” King said. “President Obama’s decision to abandon the law is yet another example of his willingness to politicize the Department of Justice on behalf of favored interest groups.”

King also noted that the House will now incur legal expenses stemming from its defense of the law. Therefore, he said, “I intend to offer an amendment that will defund the Department of Justice by a comparable amount. The DOJ should not receive funding for work that it is refusing to do.”

The Justice Department announced last month that it would no longer defend the federal Defense of Marriage Act (DOMA) because the president and Attorney General Eric Holder now believe the law is unconstitutional.

“After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act…as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment,” Holder wrote in a letter to House Speaker John Boehner (R-Ohio) on February 23.

White House Press Secretary Jay Carney said Obama believes DOMA is “unnecessary and unfair.”

But as CNSNews.com reported, critics of Obama’s decision said the president of the United States, who is sworn to faithfully execute the law, doesn’t get to pick and choose which laws to defend.

First published by CNS News on March 10, 2011.

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The Rutherford Institute Defends ‘Redneck Not Racist’ Kindergarten Bus Driver Fired for Displaying Confederate Flag on His Personal Vehicle

Posted on March 15, 2011 by | Leave a comment

The Rutherford Institute has come to the defense of a 28-year-old kindergarten bus driver who was fired for displaying a Confederate flag on his personal vehicle. Kenneth Webber was fired on March 8, 2011, five days after being suspended for refusing to comply with an order that the flag be removed from his truck while it was parked in the employee parking lot. Webber has insisted that his display of the Confederate flag does not show him to be a racist but a “backyard redneck. I work for what I have. I support my family. It’s just who I am. I’m a redneck. It’s a way of life.” Institute attorneys have charged Webber’s supervisor at First Student Bus Transportation Services, a company providing services to the Phoenix-Talent School District # 4, with violating his First Amendment right to free expression, as well as his Fourteenth Amendment right to equal protection.

“This is a clear case of political correctness run amok,” said John W. Whitehead, president of The Rutherford Institute. “Clearly, under the First Amendment, employment cannot be conditioned on forfeiting the right to the freedom of expression.”

Kenneth Webber, who has been employed by First Student Bus Transportation Services, a company providing services to the Phoenix-Talent School District # 4, for four years, began flying the Confederate flag in the bed of his pickup truck about a year ago. The 3-by-5-foot Confederate flag, which has the word “Redneck” emblazoned across it, was a birthday gift from Webber’s father in 2009. Webber drives his truck to work and parks it in the employee lot, which is leased from the school district, before reporting for his duties driving the kindergarten bus for Talent Elementary School.

On March 2, 2011, Webber was called into his supervisor’s office and ordered to remove the flag from his pickup or be suspended from his job. The demand to remove the flag was allegedly made after the school district superintendent visited First Student’s facility and saw the flag in Webber’s truck. The superintendent reportedly requested that Webber remove the flag because “some people find that symbol offensive,” justifying the request by pointing to the fact that the school district is “about 37 percent minority students,” and “we have a policy…about displaying symbols on school property that were racist, or had a potential to be seen as racist.”

Insisting on his right to free expression in his personal vehicle, Webber refused the demand, was suspended and was sent home for the day. The following day, Webber reported to work and was called to meet with two managers, who again demanded that he remove the flag or be suspended, this time for three days. Again, Webber refused and was suspended. On March 8, Webber was called into his manager’s office and was terminated after he again refused to remove the flag from his pickup. “My flag will fly,” said Webber. “No one here is gonna tell me what I can and can’t believe in.” Rutherford Institute attorneys have demanded that First Student restore Webber’s job, pointing to a 2002 victory in which the City of Topeka, Kansas, was found to have violated the First Amendment rights of a city employee by forbidding him from parking his vehicle with Confederate flag vanity license plates in the City’s employee parking lot.

Source: Rutherford Institute News, March 9, 2011.

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Japan’s Nuclear Melt Down At Earthquake Damaged Reactor

Posted on March 12, 2011 by | Leave a comment

Japanese news reports an explosion at the Fukushima Daiichi nuclear plant near Okuma, Japan.

Yesterday, fire tankers were pumping water into the reactor attempting to cool down the overheating nuclear reactor. Officials were also releasing steam into the atmosphere to lower pressure and temperatures inside the reactor’s core.

Those efforts appear to have failed. After the explosion this morning, white smoke was pouring from the nuclear reactor building. It is suspected that the white smoke is from burning concrete.

As explained by Stratfor analysts, inside the reactor core is nuclear fuel and control rods. It is the control rods that move and out of the fuel absorbing neutrons that produce heat energy. This energy is then converted usable power. A melt down occurs when fuel rods cease absorbing neutrons resulting in the increase of heat to the point of melting the fuel. This situation is still no threat as long as the reactor core remains in tact. Reactor cores are made to withstand temperatures in excess of 1,000 degrees Fahrenheit (melting point for nuclear fuel) and high pressure. Once the core brakes down, the containment building remains the only thing preventing nuclear radiation from escaping into the surrounding environment. If it is breached, nuclear radiation escapes into the surrounding environment.

The white smoke indicated explosion punctured holes in the containment building walls and roof. If this is in fact the case, the officials probably have lost the ability to prevent a nuclear disaster on the scale of 1986 Chernobyl disaster, according to Stratfor analysts.

Let’s pray this is not the case.

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Ohio Bipartisan Committee Sends Parental Consent Bill To House Floor

Posted on March 10, 2011 by | Leave a comment

Last week, the Ohio House Health and Aging Committee voted to stand with Ohio Right to Life and protect parental rights and parental notification laws for minors seeking an abortion. By a 14 to 7 vote, the House Committee passed
H.B. 63, a bill to revise the process of judicial bypass under Ohio’s Parental Consent for Abortion statute.

Though Ohio law currently requires parental consent before a minor can obtain an abortion, a loophole exists which allows judges to by-pass parental involvement and allow a minor to obtain an abortion. H.B. 63, which is sponsored by Rep. RonYoung (R-Leroy) and Rep. Lynn Slaby (R-Copley), addresses the fact that some judges are giving virtual “rubber-stamp” approval to these minor’s requests.

In a 2008 Columbus Dispatch article on bypass hearings, one Franklin County judge indicated that she had never denied a bypass request and another judge stated that she had denied only one request. A 2003 Akron Beacon Journal survey found a bypass approval rate of either 86% or 92% (the latter when a county that lumped voluntary
dismissals with denials was excluded).

“We are pleased that the Committee has recognized that abortion can have serious life-changing effects on a young girl,” said Mike Gonidakis, Executive Director of Ohio Right to Life. “H.B. 63 requires that, before cutting a girl’s parents out of the abortion decision, a judge must make sure that the girl understands the possible negative effects of abortion. It would also require the judge to determine whether the girl’s testimony really reflected her maturity or the ‘coaching’ of others,” Gonidakis said.

The continued and overwhelming support of Ohio Right to Life’s initiatives demonstrates the impact that responsible and compassionate pro-life policies can have. Protecting women and the unborn continues to unite our elected officials and saves lives.

H.B. 63 now moves forward for a full vote by the Ohio House of Representatives.

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Save Baby Joseph, Release His Medical Records

Posted on March 9, 2011 by | Leave a comment

The now-famous case of Baby Joseph in Canada is becoming critical. He could die in the next couple of weeks if his breathing tube is removed as the hospital and the government intend.

Baby Joseph is only 13 months old and often has difficulty breathing on his own. He needs a procedure called a tracheostomy in order to go home and live under his parents’ care. However, the Canadian health care system is refusing to let the family take care of their son — even though hospitals in the United States have privately said that they would take Joseph in and give him the tracheostomy he needs to survive. U.S. doctors and hospitals who are now familiar with the case are appalled that Baby Joseph hadn’t received the tracheostomy 3 or 4 months ago rather than make the baby suffer all this time.

Baby Joseph’s parents are pleading with the world for a hospital with the courage to step forward and accept their son for evaluation and treatment. Priests For Life has even agreed to supply medical air transport to and from the facilities. We will support the cost of the hospitalization and after-care including nursing. Home ventilators have also been donated to maintain Baby Joseph if needed.

There are U.S. physicians in Michigan willing to oversee Baby Joseph’s outpatient care and assist in weaning him off the home ventilator should it be necessary.

We have yet to find one facility that said it would not perform the tracheostomy on Baby Joseph.

The real problem is that health care providers in the U.S. need Baby Joseph’s medical records — but the Canadian authorities are refusing to release them.

Therefore, I need your help to contact the Canadian authorities so that a proper and humane solution to this problem can be found. We have recently discovered that Canadian law requires the hospital to release these records to Baby Joseph’s parents upon request. And to date, they have refused.

This is what is preventing hospitals in the United States from being able to accept Baby Joseph. We need those medical records! And we need them now!

To learn more about baby Joseph or contract the Canadian authorities, go Alveda King’s Blog and/or Priest for Life.

[A note about the Canadian Health Care System: It is an advanced socialist system comparable to the one proposed by Congress and Obama.]

Source:Father Frank’s Alerts email, Priests For Life email, March 6, 2011.

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Answer to Family Breakdown is “Social Fatherhood,” UN Says

Posted on March 8, 2011 by | Leave a comment

By Susan Yoshihara, Ph.D.

The cohesion of the American family is about the worst in the world, according to a new UN report. Rather than recommending policies reinforcing traditional family roles, the study recommends social policies reflecting the new reality.

Just 70 percent of American children grow up with both parents, worse than the developed world average of 84 percent. Only Estonian children fare worse. And American marriages fail more than anywhere else except Latvia, the report says.

At the same time, many men around the world desire more children than they have. American men generally desired 2.3 children in 1991 (the last year data was shown), while the U.S. fertility rate was only 1.85. In an example from the developing world, the report finds that men in Benin wanted on average 6 children in 2000, while data from the UN Population Division show that the fertility rate was only 5.79.

This evidence seems to contradict the idea of an “unmet need for family planning” upon which UN agencies base the need for voluntary family planning programs. The United States is the world’s largest donor to international family planning and population programs.

The report also finds that Chile and Ireland have the world’s lowest rates of divorce. These countries also have the world’s lowest maternal mortality rates, according to studies by several UN agencies. The new report does not explicitly correlate its data on intact marriages with better maternal health.

In light of its data on the rising breakdown of marriage and family life, the report seeks policy changes that recognize and support the “evolving role of men in families” including changes to the labor market, family law, health and social services, education and the media.

The report promotes the concept of “social fatherhood,” which “encompasses the care and support of males for children who are not necessarily their biological offspring.”

And it asserts that “the term ‘family’ encompasses a variety of traditional and non-traditional groupings, including heterosexual and homosexual partnerships, biological and social parents and children, polygamous and polygynous relationships, close friends, and other relatives.”

Social conservatives have criticized such definitions as evidence of a glaring disconnect between data that indicate the need to strengthen fatherhood and the family on one hand, and attempts to change the definition of family by activists and some governments, mostly from Europe, on the other.

“Men in Families and Family Policies in a Changing World,” is part of a series of studies resulting from a General Assembly resolution on the Follow-up to the tenth anniversary of the International Year of the Family which called for supplementing government research to change social policies.

Initial focus of the series was on achieving “equal sharing of domestic responsibilities,” and subsequent reports focused on engaging men in family planning and reproductive health, and determining the parental roles in education of children. The report was funded by the United Nations Trust Fund on Family Activities.

This article was first published in FridayFax by the Catholic Family and Human Rights Institute (C-FAM) on March 23, 2011.

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U.K. High Court Suggests Christian Beliefs Harmful to Children, Is the U.S. Next?

Posted on March 8, 2011 by | Leave a comment

In a landmark judgment, which will have a serious impact on the future of fostering and adoption in the UK, the High Court has suggested that Christians with traditional views on sexual ethics are unsuitable as foster carers, and that homosexual ‘rights’ trump freedom of conscience in the UK.The Judges stated that Christian beliefs on sexual ethics may be ‘inimical’ to children, and they implicitly upheld an Equalities and Human Rights Commission (EHRC) submission that children risk being ‘infected’ by Christian moral beliefs.

Lord Justice Munby and Mr Justice Beatson’s judgment, handed down this afternoon (28 Feb), flies in the face of a statement, made less than a week ago, by Government Minister Michael Gove, who pledged that the Coalition would change the “culture of political correctness” related to adoption and fostering, and claimed that the Government wanted to increase the number of people who could offer a loving home to a child.

Today’s ruling relates to the dispute between married couple Eunice and Owen Johns and Derby City Council. The Johns applied to the Council in 2007 to foster a child but the Council blocked their application because they objected that the Johns were not willing to promote the practise of homosexuality to a young child. In November 2010 both parties jointly asked the Court to rule on whether the Johns were able to foster children, or whether they could be excluded from doing so under equality law because of their Christian beliefs.

Today (28th February) that judgment has been released. The judges declined to make the statement that the Johns, wanting to re-establish their fostering application, had sought. Instead, the judgment strongly affirms homosexual rights over freedom of conscience and leaves the Johns currently unable to foster a child as desired, despite their proven track record as foster parents. There now appears to be nothing to stop the increasing bar on Christians who wish to adopt or foster children but who are not willing to compromise their beliefs by promoting the practise of homosexuality to small children.

The nature of the judgment means that Christians who hold orthodox Christian views on the family, marriage and sexuality will continue to face difficulties in the fostering and adoption process and the Courts will not intervene to stop this from happening. In fact, the summary contained in the judgment sends out the clear message that orthodox Christian ethical beliefs are potentially harmful to children and that Christian parents with mainstream Christian views are not suitable to be considered as potential foster parents.

In their judgment, the judges stated:

* That if children are placed with parents who have traditional Christian views like the Johns “there may well be a conflict with the local authority’s duty to safeguard and promote the welfare of looked-after children”,[1]

* That there is a tension between the equality provisions concerning religious discrimination and those concerning sexual orientation. Yet, as regards fostering, “the equality provisions concerning sexual orientation should take precedence”, [2]

* That a local authority can require positive attitudes to be demonstrated towards homosexuality, [3]

* That there is no religious discrimination against the Johns because they were being excluded from fostering due to their moral views on sexual ethics and not their Christian beliefs (This is incredible and very disingenuous as the Johns moral views cannot be separated from their religious beliefs), [4]and

* That “Article 9 [of the European Human Rights Act] only provides a ‘qualified’ right to manifest religious belief and … this will be particularly so where a person in whose care a child is placed wishes to manifest a belief that is inimical to the interests of children”. [5] [5]

Equality and Human Rights Commission

The tax payer funded EHRC played an important role in this judgment. They intervened in the Johns case, and they suggested to the Court thata child should not, in their own words,be ‘infected’ with Christian moral beliefs. Suggesting that Christian moral beliefs on sexual ethics could ‘infect’ children is an extraordinary position for a statutory body to take. It is also deeply insulting both to the Johns, who have a proven track record of successfully raising children, and to Christians in general.

THE HIGH COURT IMPLICITLY UPHELD THIS SUBMISSION BY THE EHRC.

Johns Reaction

The judgment was greeted with disbelief and sadness today by Eunice and Owen Johns. In a statement, the couple said:

“We wanted to offer a loving home to a child in need. But because of this ruling we are unsure how we can continue the application process. We have been excluded because we have moral opinions based on our faith, and a vulnerable child has probably now missed the chance of finding a safe and caring home. We do not believe that our ordinary Christian moral views are infectious, contrary to what the Equality and Human Rights Commission believes. Being a Christian is not a crime and should not stop us from raising children. Today, it looks as though a child has missed out on a home.”

Christian Legal Centre Reaction

Andrea Minichiello Williams, CEO of Christian Concern and the Christian Legal Centre said:

“The Johns are a mild mannered, ordinary Christian couple, yet they may never be able to foster children again. They were willing to love a child regardless of sexual orientation, but not willing to tell a young child that practising homosexuality was a positive thing. Now, a child has likely missed out on finding a home, at a time when there is a desperate shortage of willing parents.

“Eunice and Owen Johns have been humiliated and sidelined and told by a Government body (the EHRC) that their mainstream Christian views might “infect” children. They have also effectively been told by British Judges that their views may harm children.

“The Judges have claimed that there was no discrimination against the Johns as Christians because they were being excluded from fostering due to their sexual ethics and not their Christian beliefs. This claim that their moral beliefs on sex have nothing to do with their Christian faith is a clear falsehood made in order to justify their ruling. How can the Judges get away with this?

“What has happened to the Johns is part of a wider trend seen in recent years. The law has been increasingly interpreted by Judges in a way which favours homosexual rights over freedom of conscience. Significant areas of public life are now becoming out of bounds to Christians who do not want to compromise their beliefs. If Christian morals are harmful to children and unacceptable to the State, then how many years do we have before natural children start being taken away from Christians?

“At the Christian Legal Centre our clients have included, amongst many others, a nurse suspended for offering prayer; a Council worker suspended for talking about God to a client, a teacher suspended for offering prayer; a nurse forced off frontline nursing because she wouldn’t take off her cross. We have dealt with Civil Registrars who have been demoted because they did not want to officiate at civil partnerships, and a Christian counsellor who lost his job for not wanting to give sex therapy to homosexuals. In the last few years, several Catholic adoption agencies have been forced to close because they refused to place children with homosexual couples.

“There is a great imbalance in the law at the moment, resulting in ordinary people suffering. The situation must be addressed by Parliament as the Judiciary have failed to stand for civil liberties but have capitulated to the agenda of the homosexual rights lobby. We cannot have a society where you are excluded just because you don’t agree with the sexual ethics of the homosexual lobby. Britain is now leading Europe in intolerance against religious belief.”

Xenia Citizen Journal Reaction

The differences between the problem faced by John’s in the U.K. and American parents are only the extent to which secular values drives the assault perpetrated by law against the rights of parents and families for the benefit of special interest groups (gays in John’s case) and those groups wrong behaviors. Ultimately, at issue is the morality of individuals (Johns) and the stigmatism of groups (Christians) over against the immorality of individuals (gays) and wrong behavior of their larger affiliations.

The absence of marriage, parents, children, family from both federal and most original state constitutions demonstrates that the rights of husband (male) and wife (female), parents and children are more fundamental than those political and legal documents and the institutions created by them. Because the family institution is naturally a sexually-oriented one, the gay political agenda is at root hostile to both nature and the natural family.

The great imbalance experienced by many parents and children in America is being redressed through litigation like Alford v Greene and the efforts by the Parental Rights organization to bring a constitutional amendment to a national vote. Pro-family organization like Mass Resistance, Washington State Extended Family, American Family Association, and many more are also fighting for the preservation of the family and their once unalienable rights.

Endnotes:

[1] [6]Para 93 of Judgment

[2] [7]Para 93 of Judgment

[3] [8]Para 101 of Judgment

[4] [9]Para 99 of Judgment

[5] [9]Para 102 of Judgment

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Alford v. Greene: A Case with Far-Reaching Implications for Parents’ Rights

Posted on March 7, 2011 by | Leave a comment

By John W. Whitehead

“The child is not the mere creature of the state.” — United States Supreme Court, Pierce v. Society of Sisters

On March 1, the United States Supreme Court heard oral arguments in Alford v. Greene, the first major case involving Child Protective Services to go before the United States Supreme Court in 21 years and one of the most important parents’ rights cases ever to reach the Court.

If it goes the right way—i.e., to bolster parents’ rights—it will mean that state agents will have to obtain a court order in order to question a child at school. If it goes the wrong way, which the Obama administration is advocating for, along with 40 state attorneys general, law enforcement agencies, social workers, prosecutors and defense attorneys, it will be a serious blow to parental rights as well as the rights of children in the public schools. And then there’s the possibility that the Court will either vacate the lower court opinion, leaving the police and other government agents free to question students at will, or sidestep the issue altogether and simply choose not to rule on it, declaring it moot because the young girl involved is no longer a child.

Yet this is not an issue that is going to go away. Indeed, Alford v. Greene could have far-reaching implications for the rights of parents and students across the nation. And while the particulars of the case are egregious, they pale in comparison to the government’s effrontery in insisting that parents essentially forfeit their rights when they send their children to a public school.

In February 2003, an armed, uniformed county sheriff and an Oregon Department of Human Services caseworker directed school officials at an elementary school to summon a 9-year-old girl (referred to in the court documents as S.G.) for questioning. Despite the absence of a court order or the involvement of a judge, school officials called S.G. out of her class, took her to an empty conference room, and left her alone with the sheriff, James Alford, and the social services investigator, Bob Camreta. Then, without notifying S.G.’s mother and in the absence of anyone who might otherwise have looked out for the little girl’s best interests, these two men proceeded to question her for two hours.

During the course of the interrogation, Camreta, the social worker, peppered S.G. with questions about whether her father had ever abused her or her little sister. According to S.G.’s attorneys, when Camreta asked the 9-year-old if her father touched her “all over [her] body,” she said “yes,” referring to affectionate hugs, kisses and piggy-back rides. Camreta then asked “over and over again” if “some of those were bad touches.” Over and over again, the little girl said “no.”

Obviously intimidated by the two men, one of whom was wearing a gun clearly visible to the little girl, S.G. was too frightened even to ask for a glass of water or tell the men that she felt ill. At no time was she told that she could refuse to answer their questions or that she was free to leave the room on her own volition. (Incredibly, the Obama administration in their Supreme Court brief chalks up such interrogations to being “at most a minor intrusion on the liberty of a child whose freedom of movement is already considerably restricted by virtue of her presence at school.”)

As the interrogation dragged on, S.G. continued to deny that her father had ever abused her. Yet once the school buses started arriving to take her classmates home, S.G. found herself overcome with fear that she would be left behind. At that point, S.G. says she decided to lie and say yes to whatever the men asked, “just to get out of the room.” Upon returning home, S.G. was further traumatized to find the same two men in her house, questioning her mother. These encounters left the little girl feeling so nauseous that she later vomited five times and was unable to eat dinner.

Despite the fact that Alford had a tape recorder with him, no recording or documentation of the questions asked of S.G. during the two-hour interrogation exist. Nevertheless, based on the accounting of the two men and despite S.G.’s repeated denials of any abuse by her father, S.G. and her sister were subsequently removed from her parents’ care and placed in foster care for three weeks. They were eventually returned to their mother’s care after physical examinations failed to uncover any evidence of sexual abuse. Charges levied against their father were subsequently dropped.

In 2009, the U.S. Court of Appeals for the Ninth Circuit ruled in favor of S.G., declaring that the government had violated her Fourth Amendment right to be free from unreasonable searches and seizures. However, in appealing the case to the U.S. Supreme Court, the government is arguing that S.G.’s mere presence at school was sufficient to justify law enforcement officers seizing and interrogating her without her mother’s knowledge or consent—a position which, if upheld, will further undermine the rights of parents of public school students.

If Alford v. Greene were only about one family’s heart-wrenching ordeal, it would be bad enough. But it’s indicative of a more draconian mindset at work in the government, one that sees public school students as wards of the state, to do with as they will, in defiance of the children’s constitutional rights and those of their parents. This is far from the first time that government officials have usurped the rights of parents and arrogated authority and power over young people in the public schools. Hence, in recent years, students have found themselves subjected to invasive questioning and mass searches of their persons and property—often without their parents’ knowledge or consent.

Unfortunately, this effort to usurp parental authority and turn schools into virtual police states flies in the face of the Supreme Court’s 1968 admonition in Tinker v. Des Moines Independent School District that “neither teachers nor students shed their constitutional rights at the schoolhouse gate.” As attorney Tony LaCroix points out in “Student Drug Testing: The Blinding Appeal of In Loco Parentis and the Importance of State Protection of Student Privacy”: “The states, through a combination of compulsory attendance laws and in loco parentis-inspired policies, have ‘bootstrapped’ themselves into possessing a right to infringe on the personal liberties of students in a manner similar to a parent.” Moreover, as professor Susan Stuart recognizes in her article “In Loco Parentis in the Public Schools: Abused, Confused and in Need of Change”: “The consequences for students have been enormous, from increasing restrictions on student speech to loosening restrictions on how schools can conduct student searches. Schools have been given license to reach the outer boundaries of control by courts’ countenancing institutional and official behavior that is farther and farther from the reaches of professional conduct.”

Yet the harm caused by attitudes and policies that treat public school students as state vassals is not merely a short-term deprivation of individual rights. It also is a long-term inculcation of attitudes among our youth that civil liberties are luxuries that may be discarded at the whim and caprice of government officials if they deem doing so is for the so-called “greater good.” Rather than molding our young people into compliant citizens, the schools should be educating them for citizenship and in the scrupulous protection of our constitutional rights. Otherwise, as the Supreme Court has held, we “will strangle the free mind at its source and teach our youth to discount important principles of our government as mere platitudes.”

The public’s desire to stop and prevent child abuse cannot be gainsaid, but the government interest in investigating criminal activity has never been deemed sufficient to override fundamental rights such as the right to bodily freedom. As Supreme Court Justice Louis Brandeis opined in one of his dissenting opinions in 1928, “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. . . . The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

To see John Whitehead’s video on the Alford v Greene case, go here.

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Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. He can be contacted at johnw@rutherford.org. Information about the Institute is available at www.rutherford.org.

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Fulfilling Our Promises to the American People

Posted on March 4, 2011 by | Leave a comment

By Representative Steve Austria

Like many of you, I am very concerned about our nation’s economic future and the excessive government spending that has occurred over the past few years. That is why the new majority in Congress, led by House Speaker and fellow Ohioan John Boehner, is responding to the American people’s request to change the way they do things in Washington – and that starts with reducing the $14 trillion debt and cutting the wasteful Washington spending.

Last week, Congress responded to the American people’s request to change the way we do things in Washington, D.C. We did the difficult work of cutting government spending in a full, open and transparent process in which the House Speaker allowed more than 600 amendments to be offered and countless hours of debate to take place on the House floor. Although there were many difficult decisions, we were united in our purpose, and the end result is significant: more than *$100 billion has been cut from the budget for Fiscal Year 2011. These cuts are essential to helping put our country back on a fiscally-sustainable path that will create jobs in the private sector and strengthen the economy for our children and grandchildren.

The Senate must now work with the House to pass a Continuing Resolution (CR) which must include cuts to Washington spending to keep the federal government operating.

Pleased be assured that I remain committed to principles of smaller, more accountable government; economic freedom; lower taxes; fiscal responsibility; protecting life, American values, and the Constitution; and providing for strong national security. The governing agenda of the majority, as outlined in the Pledge to America, offers a way forward that is consistent with all of these principles.

The foundation of our plan is to get the economy back on track by creating jobs. As a former small business owner, I understand that the way to help create new jobs is by helping the small businesses who are the job creators. We must promote policies that will protect individual choice and help our small businesses. Now is the time for Congress to address the issues facing our nation and I believe we took the first steps last week. The road ahead may be hard, but we must reverse the spending binge and work to reduce the crippling national debt.

*(source: House Republican Conference)

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