DOCSLIB.ORG

Why the First Amendment Permits Sectarian Legislative Prayer and Demands a Practice Focused Analysis Robert Luther

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Why the First Amendment Permits Sectarian Legislative Prayer and Demands a Practice Focused Analysis Robert Luther Santa Clara Law Review Volume 48 | Number 3 Article 2 1-1-2008 Breaking away from the Prayer Police: Why the First Amendment Permits Sectarian Legislative Prayer and Demands a Practice Focused Analysis Robert Luther David B. Caddell Follow this and additional works at: http://digitalcommons.law.scu.edu/lawreview Part of the Law Commons Recommended Citation Robert Luther and David B. Caddell, Breaking away from the Prayer Police: Why the First Amendment Permits Sectarian Legislative Prayer and Demands a Practice Focused Analysis, 48 Santa Clara L. Rev. 569 (2008). Available at: http://digitalcommons.law.scu.edu/lawreview/vol48/iss3/2 This Article is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion in Santa Clara Law Review by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. BREAKING AWAY FROM THE "PRAYER POLICE": WHY THE FIRST AMENDMENT PERMITS SECTARIAN LEGISLATIVE PRAYER AND DEMANDS A "PRACTICE FOCUSED" ANALYSIS Robert Luther III* & David B. Caddell" Historically, the "ineluctable tension"1 within the First Amendment has concerned the relationship between the Free Exercise Clause and the Establishment Clause when the cause of such tension was an issue that involved a question of religion and its role in the public square.2 However, in a post- *Fellow, Pacific Legal Foundation, Sacramento, California (2007); Summer Associate, The Rutherford Institute (2006). J.D., Ohio Northern University Pettit College of Law (2006), B.A., Hampden-Sydney College, magna cum laude (2003). Rob would like to thank John W. Whitehead for providing him the opportunity to research this issue during the summer of 2006. He would also like to thank his co-author Dave Caddell as well as the entire staff of the Santa Clara Law Review for all of their assistance. The views expressed in this article do not necessarily reflect the views of the Pacific Legal Foundation. Rob can be reached at [email protected]. ** Staff Attorney, The Rutherford Institute, Charlottesville, Virginia (2005 - Present), J.D., Salmon P. Chase College of Law, Northern Kentucky University (2005), B.S., Northern Kentucky University (2002). Dave can be reached at [email protected]. 1. See Jesse H. Choper, The Religion Clauses of the First Amendment: Reconciling the Conflict," 41 U. Pirr L. REV. 673, 673 (1980) ("In this chapter I wish to confront the ineluctable tension that exists between the two provisions-a conflict that the Court has conceded . ."). Such "ineluctable tension" between the religion clauses was not intended by the Framers. John Baker, Amendments: Establishment of Religion, in THE HERITAGE GUIDE TO THE CONSTITUTION 302 (Edwin Meese III, Matthew Spalding & David F. Forte eds., 2005) ("In recent years the Supreme Court has placed the Establishment Clause and the Free Exercise Clause of Religion clauses in mutual tension, but it was not so for the Framers."). 2. See generally James J. Knicely, "FirstPrinciples" and the Misplacement of the "Wall of Separation": Too Late in the Day for a Cure?, 52 DRAKE L. REV. 171 (2004). Needless to say, if the Establishment Clause were not incorporated against the states, it is unlikely that any of the cases discussed in this paper 569 570 SANTA CLARA LAW REVIEW [Vol:48 Employment Division v. Smith3 world, it is not uncommon to find advocates who raise Establishment Clause claims 4 confronted with the defense of the Free Speech Clause. Thus, "religious speech in the public square" cases that range from high school valedictorians who wish to speak about the role of a particular religion in their life at graduation, 5 to cases where legislators, city council persons, school board members, 6 or invited clergy7 wish to open legislative gatherings in the name of the deity most personal to them are often met with intense condemnation and scrutiny.' would entail "Establishment Clause concerns." 3. Employment Div. v. Smith, 494 U.S. 872, 878 (1990) (holding that neutral laws of general applicability may be upheld despite an incidental burden on the practice of one's religion). 4. In cases involving religious speech in the public square, advocates are left with little choice but to raise Free Speech arguments in view of the fact that federal courts have closed the door to traditional Free Exercise claims in the years that have followed Smith. Gonzales v. 0 Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 n.1 (2006) ("As originally enacted, RFRA applied to States as well as the Federal Government. In City of Boerne v. Flores, 521 U.S. 507 (1997), we held the application to States to be beyond Congress' legislative authority under § 5 of the 14th Amendment."). 5. Cole v. Oroville Union High Sch., 228 F.3d 1092, 1105 (9th Cir. 2000); Lassonde v. Pleasanton Unified Sch. Dist., 320 F.3d 979, 985 (9th Cir. 2003) (holding that a student selected on objective criteria to present a valedictory address may not disclaim sectarian, proselytizing religious speech at a graduation ceremony). 6. Doe v. Tangipahoa Parish Sch. Bd., 473 F.3d 188 (5th Cir. 2006); Turner v. City Council of Fredericksburg, 2006 U.S. Dist. LEXIS 56786 (E.D. Va. Aug. 14, 2006); Hinrichs v. Bosma, 400 F. Supp. 2d 1103 (S.D. Ind. 2005), stay denied, 440 F.3d 393 (7th Cir. 2006), rev'd, 506 F.3d 584 (7th Cir. 2007). 7. Pelphrey v. Cobb County, 410 F. Supp. 2d 1324 (N.D. Ga. 2006) (denying plaintiffs/taxpayers motion for preliminary injunction to forbid invited clergy for invoking sectarian references during course of legislative prayer); Klingenschmitt v. Winter, No. 06-01832 (D.D.C. Oct. 25, 2006), dismissed, 2007 U.S. App. LEXIS 22630 (D.C. Cir. Sept. 21, 2007). Compare Jim Sparks, Forsyth Commissioners to Stick with Prayer Policy, WINSTON-SALEM J., Jan. 6, 2007, http://www.journalnow.com/servlet/Satellite?pagename=WSJ%2FMGArticle%2 FWSJBasicArticle&c=MGArticle&cid=1149192520899&path=!localnews!localg ov!&s=1037645509123 (County in Winston-Salem, North Carolina refuses to adopt nonsectarian prayer policy), with Tom Steadman, Prayer Debate Heats Up, NEWS-RECORD, Jul. 17, 2007, http'//www.news- record.com/apps/pbcs.dllarticle?AID=/20070717/NEWSRECOl00170716026/- 1/NEWSRECO201 (High Point, North Carolina citizens protest Point City Council's 9-1 decision to permit only nonsectarian references in legislative prayers). 8. For treatment of the controversy surrounding military chaplains who seek to close prayer with sectarian references, see Klingenschmitt v. Winter, No. 06-01832 (D.D.C. Oct. 25, 2006), dismissed, 2007 U.S. App. LEXIS 22630 2008]BREAKING AWAY FROM THE "PRAYER POLICE"571 There had been virtually no litigation or legal authority concerning the constitutionality of sectarian legislative prayer until the last six years. As a general observation, the first federal courts to confront the issue tended to over-read9 the U.S. Supreme Court's seminal opinion on legislative prayer, Marsh v. Chambers,10 by restricting all sectarian content from prayers, although some courts have recently cut back on this initial over-reading. 1 While it is clear that "if Marsh means anything, it is that the Establishment Clause does not scrutinize legislative invocations with the same rigor that it appraises other religious activities,"12 it is equally evident that lower federal courts have failed to adopt a consistent framework for answering the question of whether the Constitution permits political bodies to control the content of a speaker's religious speech during legislative prayer. In anticipation of the Supreme Court's final word, and with the hope of providing clarity to this dialogue in the meantime, we will discuss the reasons why Marsh permits the use of sectarian references despite the confusion within lower federal courts generated by reliance on dicta contained in County of Allegheny v. American Civil Liberties Union13-a case that dealt with religious symbols and not religious speech. This article urges courts to favor the historical and constitutional policy of permitting individuals to choose their own words when engaging in speech, including religious speech, within the public square. Legislative bodies that refuse to allow those who are permitted to pray the right to mention specific deities of their choosing -- Jesus, Allah, Jehovah, or others - in their prayers undermines diversity and the free speech rights of these individuals, and, in turn, (D.C. Cir. Sept. 21, 2007). See generally Jeremy G. Mallory, Comment, "An Officer of the House Which Chooses Him, and Nothing More": How Should Marsh v. Chambers Apply to Rotating Chaplains?," 73 U. CHI. L. REV. 1421 (2006). 9. See Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir. 2004); Simpson v. Chesterfield County, 404 F.3d 276, 287 (4th Cir. 2005); Bosma, 440 F.3d 393; Turner, 2006 U.S. Dist. LEXIS 5676. 10. Marsh v. Chambers, 463 U.S. 783 (1983). 11. Pelphrey,410 F. Supp. 2d 1324 (2006); Doe v. Tangipahoa Parish Sch. Bd., 473 F.3d 188 (5th Cir. 2006) (Clement, J., dissenting). 12. Simpson v. Chesterfield County, 404 F.3d 276, 287 (4th Cir. 2005). 13. County of Allegheny v. ACLU, 492 U.S. 573 (1989). 572 SANTA CLARA LAW REVIEW [Vo1:48 renders these traditionally solemn occasions meaningless. As a result of these seemingly ambiguous and disparate road signs, conflict exists amongst the federal circuits in these legislative prayer cases. 14 An attempt at reconciliation has created a myriad of confusing paths before courts addressing the issue." United States District Court Judge David Hamilton articulated a number of. these diverging philosophies when he stated: There are three solutions to the problem the Speaker has raised in terms of the inherently sectarian content of any prayer.
Load more

Recommended publications
  • Promoting Accuracy and Fairness in the Use of Government Watch Lists
    STATEMENT ON PRESIDENTIAL SIGNING STATEMENTS BY THE COALITION TO DEFEND CHECKS AND BALANCES AN INITIATIVE OF THE CONSTITUTION PROJECT The Constitution Project 1025 Vermont Avenue, NW Third Floor Washington, DC 20005 202-580-6920 (phone) 202-580-6929 (fax) [email protected] www.constitutionproject.org STATEMENT ON PRESIDENTIAL SIGNING STATEMENTS BY THE COALITION TO DEFEND CHECKS AND BALANCES We are members of the Constitution Project’s Coalition to Defend Checks and Balances. We are former government officials and judges, scholars, and other Americans who are deeply concerned about the risk of permanent and unchecked presidential power, and the accompanying failure of Congress to exercise its responsibility as a separate and independent branch of government. We write to express our concerns about certain uses of presidential signing statements that we believe greatly increase this risk. We applaud Senate Judiciary Committee Chairman Arlen Specter for calling a hearing to focus attention on an issue that goes to the very heart of our system of government. Presidential signing statements – formal expressions of the views of a President regarding legislation that he has just signed into law – are nearly as old as the Republic. There is nothing inherently troubling about them. The question is how they are used. Throughout history, signing statements have been used to thank supporters, provide reasons for signing a bill, and express satisfaction or, on occasion, displeasure with legislation passed by Congress. More recently, Presidents Ronald Reagan, George H.W. Bush, and Bill Clinton have used signing statements as a tool to express constitutional and other objections to legislation, influence judicial interpretation, and otherwise advance policy goals.
    [Show full text]
  • No. 17-249 John W. Whitehead Counsel
    No. 17-249 IN THE ___________ AMY YOUNG and JOHN SCOTT, as Co-Personal Representatives of the Estate of Andrew Lee Scott, deceased, and MIRANDA MAUCK, individually, Petitioners, v. GARY S. BORDERS, in his official capacity as Sheriff of Lake County Florida, and RICHARD SYLVESTER, in his individual capacity, Respondents. ___________ ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT __________ MOTION FOR LEAVE TO FILE AND BRIEF OF THE RUTHERFORD INSTITUTE AS AMICUS CURIAE IN SUPPORT OF PETITIONERS __________ John W. Whitehead Counsel of Record Douglas R. McKusick THE RUTHERFORD INSTITUTE 923 Gardens Boulevard Charlottesville, VA 22901 (434) 978-3888 [email protected] [email protected] Lantagne Legal Printing 801 East Main Street Suite 100 Richmond VA 23219 (800) 847-0477 1 MOTION FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE IN SUPPORT OF PETITIONERS Pursuant to Supreme Court Rule 37.2(b), The Rutherford Institute respectfully moves for leave to file the attached brief as amicus curiae supporting the Petitioners. All parties were provided with time- ly notice of amicus’ intent to file as required by Rule 37.2(a). Counsel of record for the Petitioners grant- ed consent to the filing of this amicus curiae brief. Counsel of record for the Respondents denied con- sent to the filing of this amicus curiae brief. The interest of amicus arises from its com- mitment to protecting the civil rights and liberties of all persons and defending advancing the laws and Constitution of the United States as a bulwark against abuses of government power.
    [Show full text]
  • 14-720 Reply Brief
    NO. 14-720 In the Supreme Court of the United States JOHN DARIANO; DIANNA DARIANO, on behalf of their minor child, M.D.; KURT FAGERSTROM; JULIE ANN FAGERSTROM, on behalf of their minor child, D.M.; KENDALL JONES; JOY JONES, on behalf of their minor child, D.G., Petitioners, v. MORGAN HILL UNIFIED SCHOOL DISTRICT; NICK BODEN, in his official capacity as Principal, Live Oak High School; MIGUEL RODRIGUEZ, in his individual and official capacity as Assistant Principal, Live Oak High School, Respondents. On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit REPLY BRIEF FOR PETITIONERS ROBERT JOSEPH MUISE WILLIAM JOSEPH Counsel of Record BECKER, JR. American Freedom Law Center Freedom X P.O. Box 131098 11500 Olympic Blvd. Ann Arbor, MI 48113 Suite 400 (734) 635-3756 Los Angeles, CA 90064 [email protected] (310) 636-1018 ERIN MERSINO Affiliated Counsel with Thomas More Law Center The Rutherford Institute 24 Frank Lloyd Wright Drive Counsel for Petitioners P.O. Box 393 Ann Arbor, MI 48106 (734) 827-2001 Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001 i TABLE OF CONTENTS TABLE OF AUTHORITIES................... ii INTRODUCTION........................... 1 REVIEW OF RELEVANT FACTS .............. 3 ARGUMENT IN REPLY...................... 7 I. The Ninth Circuit Misapplied Tinker and Allowed a Heckler’s Veto to Silence Protected Student Speech .......................... 7 II. This Case Is the Ideal Vehicle for Deciding the Question Presented...................... 11 CONCLUSION ............................ 13 ii TABLE OF AUTHORITIES CASES Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ....................... 3 Bernhardt v. Cnty. of L.A., 279 F.3d 862 (9th Cir.
    [Show full text]
  • Brief for Amnesty International USA, the Center for Constitutional Rights
    No. 15-118 ================================================================ In The Supreme Court of the United States --------------------------------- --------------------------------- JESUS C. HERNANDEZ, et al., Petitioners, v. JESUS MESA, JR., Respondent. --------------------------------- --------------------------------- On Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit --------------------------------- --------------------------------- BRIEF OF AMICI CURIAE AMNESTY INTERNATIONAL USA, THE CENTER FOR CONSTITUTIONAL RIGHTS, HUMAN RIGHTS FIRST, AND THE RUTHERFORD INSTITUTE IN SUPPORT OF PETITIONERS --------------------------------- --------------------------------- HOPE METCALF BRENT M. ROSENTHAL Counsel of Record ROSENTHAL WEINER LLP 127 Wall Street 12221 Merit Drive, Suite 1640 New Haven, CT 06511 Dallas, TX 75251 (203) 432-9404 (214) 871-6600 [email protected] [email protected] DIALA SHAMAS 559 Nathan Abbott Way Stanford, CA 94305 (650) 725-1797 [email protected] Counsel for Amici Curiae ================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM i TABLE OF CONTENTS Page Table of Authorities ............................................. ii Interest of Amici Curiae ...................................... 1 Summary of Argument ........................................ 2 Argument ............................................................. 5 Conclusion ............................................................ 15
    [Show full text]
  • Supreme Court of the United States ______ROXANNE TORRES, Petitioner, V
    No. 19 -292 IN THE Supreme Court of the United States ___________ ROXANNE TORRES, Petitioner, v. JANICE MADRID AND RICHARD WILLIAMSON, Respondents. ___________ On Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit ___________ BRIEF OF THE RUTHERFORD INSTITUTE AND NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS AS AMICI CURIAE IN SUPPORT OF PETITIONER ___________ JOHN W. WHITEHEAD JEFFREY T. GREEN* DOUGLAS R. MCKUSICK JOHN L. GIBBONS THE RUTHERFORD SIDLEY AUSTIN LLP INSTITUTE 1501 K Street NW 109 Deerwood Road Washington, DC 20005 Charlottesville, VA 22911 (202) 736-8000 (434) 978-3888 [email protected] BARBARA E. BERGMAN SARAH O’ROURKE SCHRUP NATIONAL ASSOCIATION NORTHWESTERN SUPREME OF CRIMINAL DEFENSE COURT PRACTICUM LAWYERS 375 East Chicago Avenue 1201 East Speedway Chicago, IL 60611 Boulevard (312) 503-0063 Tucson, AZ 85721 (520) 621-3984 Counsel for Amici Curiae February 7, 2020 * Counsel of Record ii TABLE OF CONTENTS Page QUESTION PRESENTED ..................................... i TABLE OF AUTHORITIES ................................... ii INTEREST OF AMICI CURIAE ............................ 1 SUMMARY OF THE ARGUMENT ....................... 2 ARGUMENT ............................................................ 2 I. IF THE FOURTH AMENDMENT DOES NOT APPLY HERE, MS. TORRES WILL HAVE NO REMEDY AT ALL ..................... 2 II. THE DECISION BELOW CONTRADICTS THIS COURT’S JURISPRUDENCE ........... 9 III. THE TENTH CIRCUIT’S RULING EX- PANDS THE UNJUSTIFIABLY SIGNIFI- CANT DISPARITY THAT ALREADY EX- ISTS BETWEEN LIABILITY FOR CIVIL- IANS AND FOR POLICE OFFICERS ........ 12 CONCLUSION ........................................................ 17 iii TABLE OF AUTHORITIES CASES Page Adams v. Commonwealth, 534 S.E.2d 347 (Va. Ct. App. 2000) .................................... 14 Ashby v. White (1703) 92 Eng. Rep. 126; 2 Ld. Raym. 938 ........................................... 8 Baker v.
    [Show full text]
  • Precedential United States Court Of
    Case: 07-4465 Document: 003110560159 Page: 1 Date Filed: 06/13/2011 PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 07-4465 JUSTIN LAYSHOCK, a minor, by and through his parents; DONALD LAYSHOCK; CHERYL LAYSHOCK, individually and on behalf of their son v. HERMITAGE SCHOOL DISTRICT KAREN IONTA, District Superintendent; ERIC W. TROSCH, Principal Hickory High School, CHRIS GILL, Co-Principal Hickory High School, all in their official and individual capacity Hermitage School District, Appellant Appeal from the United States District Court for the Western District of Pennsylvania (Civ. No. 06-cv-00116) District Judge: Hon. Terrence F. McVerry Argued on December 10, 2008 Opinion Filed on February 4, 2010 1 Case: 07-4465 Document: 003110560159 Page: 2 Date Filed: 06/13/2011 Opinion Vacated and Petition for Rehearing En Banc Granted on April 9, 2010 Rehearing En Banc Ordered for June 3, 2010 Argued En Banc on June 3, 2010 Before: McKEE, Chief Judge, SLOVITER, SCIRICA, RENDELL, BARRY, AMBRO, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, GREENAWAY, VANASKIE and ROTH, Circuit Judges. (Opinion filed: June 13, 2011) ANTHONY G. SANCHEZ, ESQ. (Argued) CHRISTINA LANE, ESQ. Andrews & Price 1500 Ardmore Boulevard, Suite 506 Pittsburgh, PA 15221 Attorneys for Appellant, Hermitage School District SEAN A. FIELDS, ESQ. Associate Counsel Pennsylvania School Boards Association 400 Bent Creek Boulevard P.O. Box 2042 Mechanicsburg, PA 17055 Attorney for Amicus Curiae, Pennsylvania School Board Association, filed in support of Appellant, Hermitage School District KIM M. WATTERSON, ESQ. 2 Case: 07-4465 Document: 003110560159 Page: 3 Date Filed: 06/13/2011 RICHARD T. TING, ESQ.
    [Show full text]
  • November 2011
    TCP Journal November 2011 On My Mind: Monthly Message from TCP President Virginia Sloan I am delighted to report that The Constitution Project (TCP) was recently recognized as one of the Top 16 Criminal Justice Nonprofits in the nation. We were chosen for this honor by a panel of experts (including CEOs, legal professionals, and policy analysts) surveyed by Philanthropedia, a rating agency that uses peer review to identify and highlight the work of exceptional nonprofits. Philanthropedia lauded TCP for “its innovative strategies, its well-respected and hard-working staff, and its ability to influence political leaders.” They noted TCP’s strong advocacy programs, our excellent legal analysis and our nonpartisan, non-ideological approach to criminal justice issues. TCP is proud to be counted among such an elite group of organizations—all of which we admire, and many with which we work closely—such as the ACLU, The Innocence Project, the Southern Center for Human Rights, and the NAACP. This assessment and recognition of our strengths by independent experts is evidence of TCP’s unique and vital work; we hope you will help us to continue our efforts by donating now. Want your donation to have a little more impact? The Constitution Project is participating in a year-end contest sponsored by GuideStar, Philanthropedia’s parent organization. The non-profit with the greatest number of contributions made through their website will receive an additional bonus from GuideStar. By donating $15 or more, you can help us win $5,000. TCP Hosts an Event Noting 25th Anniversary of ECPA, Urges Lawmakers to Update Privacy Laws ECPA On October 27th, TCP hosted a “retro technology fair” and panel discussion on Capitol Hill to commemorate the 25th anniversary of the Electronic Communications Privacy Act (ECPA) and to demonstrate the urgent need to update it.
    [Show full text]
  • Promoting Accuracy and Fairness in the Use of Government Watch Lists
    STATEMENT CALLING FOR THE RELEASE OF THE UIGHURS Ten Prominent Conservatives Say Indefinite Detention Violates the Constitution November 20, 2008 The Constitution Project 1025 Vermont Avenue, NW Third Floor Washington, DC 20005 202‐580‐6920 (phone) 202‐580‐6929 (fax) [email protected] www.constitutionproject.org STATEMENT CALLING FOR THE RELEASE OF THE UIGHURS On Wednesday, October 7, 2008, federal district judge Ricardo Urbina ordered the release of Guantanamo detainees whom the Bush administration admits are not enemy combatants. Detained for nearly seven years and of Uighur-Chinese ethnicity, these 17 men were ordered to appear at a hearing in Washington, D.C. on October 10 to determine the terms of their release. The U.S. Court of Appeals for the District of Columbia Circuit issued a stay while it considers the administration’s appeal of that ruling. Unfortunately, the Uighurs cannot be repatriated to China, their homeland, due to state sponsored persecution, and it is an open question whether any country would admit them. The United States government proposes to confine the Uighurs indefinitely in Guantanamo, is continuing to narrowly construe the federal court’s ability to exercise its habeas corpus powers, and is actively seeking to prevent their appearance in court. While it is clearly necessary for the United States to detain foreign terrorists to protect national security, that is not at issue here. The continued detention of the 17 Uighurs in Guantanamo compromises our principles and undermines our standing in the world. The right of habeas corpus is the preeminent safeguard of individual liberty and separation of powers.
    [Show full text]
  • Supreme Court of the United States
    No. 14A103 In The Supreme Court of the United States -------------------------- ♦ --------------------------- DAVID KENTNER, et al., Petitioners, v. CITY OF SANIBEL, FLORIDA, Respondent. -------------------------- ♦ -------------------------- ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT -------------------------- ♦ -------------------------- BRIEF OF AMICI CURIAE OF NATIONAL FEDERATION OF INDEPENDENT BUSINESS SMALL BUSINESS LEGAL CENTER, CATO INSTITUTE, OWNERS COUNCIL OF AMERICA, AND RUTHERFORD INSTITUTE IN SUPPORT OF PETITIONER -------------------------- ♦ -------------------------- Karen R. Harned Ilya Somin Luke A. Wake Counsel of Record NFIB SMALL BUSINESS LEGAL CENTER GEORGE MASON 1201 F. Street, N.W., Suite 200 UNIVERSITY SCHOOL Washington, D.C. 20004 oF LAW (202) 314-2048 3301 Fairfax Drive [email protected] Arlington, Virginia 22201 (703) 993-8069 [email protected] Counsel for Amici Curiae Counsel for Amici Curiae Dated: November 3, 2014 (additional counsel listed inside cover) THE LEX GROUPDC 1825 K Street, N.W. Suite 103 Washington, D.C. 20006 (202) 955-0001 (800) 856-4419 Fax: (202) 955-0022 www.thelexgroup.com No. 14A103 (counsel continued from outside cover) Ilya Shapiro CATO INSTITUTE 1000 Massachusetts Avenue, N.W. Washington, D.C. 20001 (202) 842-0200 [email protected] Robert H. Thomas DAMON KEY LEONG KUPCHAK HASTERT 1003 Bishop Street, 16th Floor Honolulu, Hawaii 96813 [email protected] John W. Whitehead RUTHERFORD INSTITUTE 1440 Sachem Place Charlottesville,
    [Show full text]
  • Constitution Project Amicus Brief
    Nos. 08-1498 & 09-89 In the Supreme Court of the United States ERIC HOLDER, ATTORNEY GENERAL, ET AL., Petitioners/Cross-Respondents, v. HUMANITARIAN LAW PROJECT, ET AL., Respondents/Cross-Petitioners. On Writs of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF OF THE CONSTITUTION PROJECT AND THE RUTHERFORD INSTITUTE AS AMICI CURIAE IN SUPPORT OF RESPONDENTS/CROSS-PETITIONERS SHARON BRADFORD FRANKLIN DAVID M. GOSSETT The Constitution Project Counsel of Record 1200 18th Street NW MICHAEL B. KIMBERLY* Washington D.C. 20036 Mayer Brown LLP (202) 580-6920 1999 K Street, NW Washington, DC 20006 (202) 263-3000 JOHN W. WHITEHEAD Rutherford Institute *Admitted in Maryland 1440 Sachem Place only; practicing under Charlottesville, VA 22901 supervision pursuant to (434) 978-3888 D.C. App. Rule 49(c)(8). Counsel for the Amici Curiae i QUESTION PRESENTED The amici curiae will address the following ques- tion: Whether the provisions of the Antiterrorism and Effective Death Penalty Act that prohibit providing “service,” “training,” “expert advice,” and “personnel” to designated terrorist organizations (18 U.S.C. §§ 2339A, 2339B) should be severed from the statute as unconstitutionally overbroad because they directly criminalize and incidentally chill a substantial range of protected speech and association. ii TABLE OF CONTENTS Page QUESTION PRESENTED.......................................... i TABLE OF AUTHORITIES...................................... iii INTEREST OF THE AMICI CURIAE .......................1 INTRODUCTION AND SUMMARY OF ARGUMENT ...............................................................3 ARGUMENT ...............................................................8 The “Service,” “Training,” “Expert Advice,” And “Personnel” Provisions Of The Material Support Bar Are Unconstitutionally Overbroad...............................8 A. The material support law is overbroad as written..........................................................9 1. The material support bar’s burdens upon protected speech and association are substantial.
    [Show full text]
  • Brief of Petitioner for Mcdonald V. City Of
    No. 08-1521 1Jn '!tbt ~upreme ((ourt of tbe Wntteb ~tate5 OTIS MCDONALD, ET AL., Petitioners, v. CITY OF CHICAGO, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit AMICUS CURIAE BRIEF OF THE RUTHERFORD INSTITUTE IN SUPPORT OF PETITIONERS John W. Whitehead Counsel of Record Douglas R. McKusick John M. Beckett THE RUTHERFORD INSTITUTE 1440 Sachem Place Charlottesville, VA 22901 (434) 978-3888 LANTAGNE LEGAL PRINTING BOl East Main Street Suite 100 Richmond, Virginia 23219 (BOO) B47-0477 i TABLE OF CONTENTS TABLE OF CONTENTS ..............................................i TABLE OF AUTHORITIES........................................ii QUESTION PRESENTED..........................................1 INTEREST OF AMICUS CURIAE.............................1 STATEMENT OF FACTS ...........................................2 SUMMARY OF ARGUMENT .....................................2 ARGUMENT................................................................4 I. The Right To Bear Arms Is A Fundamental Right of All Americans Guaranteed By The Fourteenth Amendment And Applies Equally To The States And The Federal Government. .............4 CONCLUSION ..........................................................14 ii TABLE OF AUTHORITIES Cases Bach v. Pataki, 408 F.3d 75 (2d Cir. 2005), cert. denied, 546 U.S. 1174 (2006). ..................................8 Benton v. Maryland, 395 U.S. 784 (1969)...............6, 7 Duncan v. Louisiana, 391 U.S. 145 (1968) .................7 Gardner v. Vespia, 252 F.3d 500 (1st Cir. 2001) .........8 Heller v. District of Columbia, 128 S.Ct. 2783 (2008) ........................................................................ passim Love v. Pepersack, 47 F.3d 120 (4th Cir. 1995)............8 Malloy v. Hogan, 378 U.S. 1 (1964) ............................7 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) .10 National Rifle Ass’n of America, Inc. v. City of Chicago, 567 F.3d 856 (7th Cir. 2009)..................5, 8 Nordyke v.
    [Show full text]
  • 20200220134409534 19-899 Tsac DKT Liberty Project.Pdf
    No. 19-899 IN THE Supreme Court of the United States __________ SHANIZ WEST, Petitioner, v. DOUG WINFIELD, ET AL., Respondents. __________ On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit __________ BRIEF OF THE DKT LIBERTY PROJECT, THE DUE PROCESS INSTITUTE, THE RUTHERFORD INSTITUTE, AND REASON FOUNDATION AS AMICI CURIAE IN SUPPORT OF PETITIONER __________ JESSICA RING AMUNSON Counsel of Record ANDREW C. NOLL JENNER & BLOCK LLP 1099 New York Ave., NW Suite 900 Washington, DC 20001 (202) 639-6000 [email protected] Counsel for Amici Curiae TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................... ii INTEREST OF AMICI CURIAE ................................. 1 SUMMARY OF ARGUMENT ........................................ 3 ARGUMENT ...................................................................... 5 I. Requiring A Case Presenting Nearly Identical Factual Circumstances To Demonstrate “Clearly Established” Law Sets An Impossible Standard And Insulates Egregious Constitutional Violations From Liability. ..................................... 5 II. The Unjustified Extension Of Qualified Immunity Undermines Public Trust In The Rule Of Law—Particularly In The Fourth Amendment Context. ............................. 10 A. Qualified Immunity Imposes A Significant Procedural Hurdle To Litigants’ Vindication Of Constitutional Rights. ................................. 11 B. Qualified Immunity Undermines Accountability And Public Trust In Law Enforcement. ......................................
    [Show full text]