As a not particularly religious Jew, I have always leaned toward the cautious side when it comes to prayer in public/government facilities. But my caution is against government requiring or imposing prayer on people who do, or even worse who must, be at that particular place at that particular time. Government establishment of religion is one thing, and it must not be permitted. Government prevention of the free expression of someone’s faith, even if in a public place, cannot be tolerated. And thus I was very happy to see that the Fifth Circuit Court of Appeals overturned an outrageous ruling by a lower court which would have prevented Angela Hildenbrand, the valedictorian of her high school, from saying “God” or encouraging the audience to join her in prayer. Somewhat sickening to me — and I say this as an atheist — is that the suit was filed on behalf of another student who was alleging that the school was thus compelling government-sponsored prayer. More sickening to me was that a judge would issue an injuction saying that the plaintiffs were likely to succeed on the merits. In other words, this judge decided to trump Ms. Hildenbrand First Amendment rights based on the idea that a graduating student speaking in her own words was effectively an agent of the government illegally forcing religion on the audience. I am not offended when religious people express their own faith — as long as their faith doesn’t require my conversion or my death. When has America become so hyper-sensitive about religion that we can’t hear a high school student tell us what she values in her own life? It’s one thing to object to government establishing religion. It’s another thing entirely — and just as objectionable — for government to forbid it.
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Government-Forbidden Prayer
A federal judge on Thursday ruled that a lawsuit against the new health care law brought by 20 states led by Florida can go forward. In a 65-page ruling , the judge rejected the Obama administration’s attempt to have the suit thrown out, arguing that the states had a “plausible claim” to challenge the law’s constitutionality. While U.S. District Court Judge Roger Vinson dismissed some of the states’ claims, he sided with them when it came to the central challenge to the law — that forcing individuals to purchase health insurance exceeds the government’s authority under the Commerce Clause. Like a similar ruling in Virginia in August, Vinson’s decision will only mean that the case gets to continue because the plaintiffs have legitimate standing. Future court decisions will address the merits of the underlying arguments. Nonetheless, the decision provides a boost to opponents of the national health care law, and a blow to the administration. “In denying the government’s motion to dismiss the challenge to the individual health insurance mandate, Judge Vinson ruled that ‘the plaintiffs have most definitely stated a plausible claim with respect to this cause of action,’” Georgetown Law professor Randy Barnett said in a statement. “This decision now joins District Judge Henry Hudson’s ruling in Virgina refusing to dismiss the challenge to the individual mandate. In both Virginia and Florida we now move to a decision on the merits. Given how well both judges understood the constitutional novelty of imposing economic mandates on the people, there is reason to be cautiously optimistic that they will find the individual insurance mandate to be unconstitutional. But, however the district courts rule on this case, their reception of the arguments made by the state attorneys general foretell that the ultimate decision will be made by the U.S. Supreme Court.”
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Judge Rules For Florida’s Anti-ObamaCare Lawsuit to Go Forward
Last seen trying (unsuccessfully) to get me fired for calling him on his lies, Brad Friedman resurfaces today (no links for liars!) to mischaracterize yesterday’s decision on ACORN funding: The appellate court determined that Congress can target a specific group for punishment . . . Oh, really?! The appellate court approvingly quoted a past decision saying the precise opposite : We therefore hold that corporations must be considered individuals that may not be singled out for punishment under the Bill of Attainder Clause. What the court actually said was that defunding ACORN does not constitute punishment: [W]e doubt that the direct consequences of the appropriations laws temporarily precluding ACORN from federal funds are “so disproportionately severe” or “so inappropriate” as to constitute punishment per se. . . . In sum, the plaintiffs have failed to show that the appropriations laws constitute “punishment” under the functional test. . . . Nor is the legislative record sufficient to demonstrate “punishment” cumulatively with the historical and functional tests of punishment analyzed above. If one did not have Friedman’s history of deception as a guidepost , one might call Friedman’s mischaracterization a mistake, born of some combination of laziness and poor reading skills. But we do have that history. So there you go.
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Brad Friedman’s Latest ACORN Falsehoods
The Supreme Court recently gave a significant victory to those seeking to prevent plaintiffs’ lawyers from taking advantage of our overly generous civil justice system. In Morrison v. National Australia Bank Ltd. , the Court held that plaintiffs who purchased securities traded on foreign exchanges could not bring an action for securities fraud in U.S. courts. The case involved a lawsuit brought against an Australian company for alleged misstatements made to foreign investors in connection with securities traded on the Australian securities market. The Court held that Congress declined to provide a venue for foreign plaintiffs seeking to pursue such fraud claims in U.S. courts. Prior to Morrison , some courts had interpreted the law much differently, holding that such cases may proceed where a sufficient portion of the alleged misconduct occurred in the United States or where the foreign activities had sufficient “effects” on U.S. investors and securities markets. As Justice Scalia noted in his majority opinion, this result was contrary to the plain language of the securities laws and the strong presumption that Congress intended laws to apply solely within the boundaries of the United States. Nonetheless, foreign plaintiffs were lining up to bring such suits, leading some to fear that the United States had “become the Shangri-Law of class-action litigation for lawyers representing those allegedly cheated in foreign securities markets.” The Court’s decision in Morrison cut off this potential expansion of the securities laws to reach foreign disputes — a ruling that is likely to have a significantly positive effect. With the recent economic downturn and accompanying drop in stock prices, the plaintiffs’ bar is lining up to file new lawsuits accusing companies of fraud. The last thing the judicial system needs is a wave of additional litigation over foreign securities clogging the U.S. courts. Moreover, as Justice Scalia noted, each country has its own standards for defining what constitutes securities fraud. Allowing disputes over foreign securities to be brought in U.S. courts would usurp other countries’ authority to determine their own laws and upset settled expectations of those selling securities in foreign markets. A “race to the bottom” would ensue, with foreign plaintiffs rushing to U.S. courts that they believed might employ comparatively lax standards and offer potentially greater awards. While the result in Morrison is a welcome one, it raises a more fundamental question: Why are foreign plaintiffs increasingly attempting to resolve their disputes in U.S. courts? Even a cursory analysis provides several potential answers. Class action practice in the United States often makes it easier for plaintiffs to join claims in a single suit. By bundling claims together, plaintiffs can put additional pressure on defendants to settle regardless of the merits. The United States also stands out in allowing contingent fees under which plaintiffs’ lawyers may take a “piece of the action” in the form of a percentage of any judgment if the plaintiffs win. This provides a powerful incentive to bring new cases and an effective funding mechanism for litigation. Finally, the vagaries of U.S. juries often provide the potential for windfall verdicts. Given these risks, companies often find that it is safer to simply settle cases, rather than going to trial. In sum, U.S. law often facilities litigation — whether meritorious or not. Cases such as Morrison should prompt a thorough review of our civil justice system and provide an impetus for reform. In the absence of such reform, the United States will increasingly become a magnet for foreign lawsuits — of all kinds. This is a result that our country can ill afford at this time.
Excerpt from:
Hiding Behind U.S. Law
