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Will The U.S. Supreme Court Protect The First Amendment Rights Of Colorado Bakeries? (Forbes.com) December 20, 2013

Posted by daviddavenport in Op/Eds.
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My dad ran a small bakery and I spent thousands of hours working there, baking, selling, delivering, sometimes even decorating cakes and other pastries. To him, the work was not just professional, but also personal: he knew most of his customers who came from our church, school, and neighborhood to shop. His front door was open to customers, but his back door welcomed friends for a cup of coffee, a donut and a chat while he worked. As a Christian, his work was also part of his ministry—he exercised his values there and helped a lot of people.

So I took more than a passing interest when a judge in Colorado recently ruled that a retail bakery had violated the law for refusing to decorate a cake for a same sex wedding celebration. Though my dad and the family bakery are long since gone, I could imagine him struggling with whether he could place two grooms on top of a wedding cake. As the Colorado baker argued in court, a cake decorator’s work is creative expression. When you take the cake to the church or party and set it up, you are in some sense a participant in the process. All this was a problem for the baker, whose religious convictions do not allow him to support same sex marriage.

But Colorado administrative law judge Robert Spencer said no, a bakery is a public accommodation, defined rather broadly in Colorado as any business that sells to the public. And, as such, a cake decorator cannot discriminate based upon sexual orientation. Even the fact that same sex marriage is illegal in Colorado did not cut the baker any slack. Next time he either decorates that cake, faces fines or jail, or closes the business, as the owner of a bakery in Oregon did in a similar situation a few months ago.

Although some have argued that this is a small matter—“let them eat cake”—it is part of an important and growing clash between one person’s First Amendment rights to freedom of religion and speech and another’s civil and social rights. With same sex marriage now legal in 16 states and still counting, that arena alone will generate increased conflict of this kind. For example, a wedding photographer in New Mexico who refused to serve a same-sex commitment ceremony on similar free speech and free exercise of religion grounds was held in violation of that state’s anti-discrimination laws and is appealing the case to the U.S. Supreme Court.

It’s not just about businesses and their customers, either. Hobby Lobby will be in the U.S. Supreme Court this term because the Affordable Healthcare Act requires them to provide contraceptive coverage to employees in violation of its owners’ religious principles. Indeed there are now over 80 of these lawsuits, and the D.C. Circuit Court of Appeals recently ruled that business owners do not give up their First Amendment rights merely because they choose to operate in a corporate form.

These are tough cases in part because both sides want an all-out win, not a compromise. Advocates for contraceptive coverage and same sex marriage argue that these are fundamental, constitutional protections that must be defended, essentially at all costs. Progressives and social activists see the contraceptive rights of Obamacare and same sex marriage as the new civil rights struggles and are unwilling to compromise. On the other side are those seeking to protect freedom of religion, which they believe to be under steady assault in society and especially in the courts. Some conservative Christians foresee the day when merely reading certain passages of scripture from the Bible, even in a church pulpit, will be considered “hate speech” under the law.

But in the end, there will need to be a solution in which the rights of both are recognized and they are able to live together in the same society. Will this be accomplished by balancing out the rights, one against the other? Should people in the expressive business—photographers or maybe bakers—have stronger rights than garden-variety businesses? Should public accommodation businesses be more narrowly defined than “anyone who sells to the public?” Or will one side win and the other lose? These are tough questions the U.S. Supreme Court will face in 2014.



A Nation of Laws, Not Men (Defining Ideas) September 3, 2013

Posted by daviddavenport in Op/Eds, Policy Articles & Papers.
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On September 4, a court in Pennsylvania will consider whether a county registrar of wills may issue marriage licenses to same sex couples in contravention of state law because he has decided that law is unconstitutional. This official has now issued over 100 such licenses and other public officials (mayors) have used them to perform same sex wedding ceremonies. The legal challenge by the Pennsylvania Department of Health, which has overall responsibility for marriage laws and licensing, is loaded with constitutional, legal, social, and marital consequences, all of which deserve careful consideration.

At the same time, the Governor and Attorney General of Pennsylvania have exchanged political blows over whether that state law banning same sex marriage should be defended in court and, if so, who has the responsibility to do that. The attorney general says Pennsylvania’s 1996 law stating that marriage is between a man and a woman is “wholly unconstitutional” and she will not defend it, even though the recent Supreme Court decision in Windsor v. United States said states were free to make their own decisions about gay marriage.

This follows on the heels of President Obama’s and Attorney General Holder’s decision to not to defend the federal Defense of Marriage Act (DOMA) in the years prior to the recent determination by the U.S. Supreme Court that the law is unconstitutional. And similar questions arose in the recent California Proposition 8 case when that state’s governor and attorney general declined to defend the law because they felt it was unconstitutional, with the remarkable result, handed down by the Supreme Court, that no one had standing to defend that part of the California Constitution in court.

It looks like a virus is spreading among public officials creating delusions that any one of them may unilaterally decide a law is unconstitutional and decline to follow the law or defend it in court. Setting aside for a moment the same sex marriage context of these actions—we could be talking about environmental laws or gun control or taxes—is it really the case that a single federal, state, or county official is free to make a judgment about the constitutionality of a law and decline to execute, enforce, or defend it? Are we no longer what founder (and second president) John Adams called “a nation of laws and not of men”?

To read the rest of David’s article, please click the link below:


The Politics of Justice (Townhall.com) August 3, 2010

Posted by daviddavenport in Radio Commentaries.
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Although President Obama talks about immigration reform, his 

Courtesy of Townhall.com

administration’s first major action was to sue the state of Arizona for tackling the issue. Even Democrats, like the Governor of Colorado, say that waiting ’til the Arizona law actually took effect made more sense.

But Attorney General Eric Holder seems more interested in scoring political points in the Department of Justice than legal ones.  One would think he might be too busy defending health care reform or prosecuting 9/11 terrorists to sue a state for filling the frustrating void the federal government has left on immigration policy.

I suspect the people—who seem to understand Arizona’s frustration and support its law—may make their own political points to Mr. Holder and Mr. Obama in this fall’s elections.

To hear the podcast:   http://townhall.com/talkradio/Show.aspx?RadioShowID=11&ContentGuid=58f9aea4-cf5f-4b13-bb3b-8928582f4d2d


Hard Questions for Holder (The Washington Times) March 19, 2010

Posted by daviddavenport in Newspaper Columns/Essays.
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It’s been a rough few months for Attorney General Eric H. Holder Jr., and   he should face more tough questioning when he reports for the Senate Judiciary Committee oversight hearing on Tuesday.

In the legal war on terror alone, he has been under fire for scheduling the trial of Khalid Shaikh Mohammed in civil court in New York rather than in a military tribunal; for Mirandizing the Christmas Day bomber suspect; for trying to relocate Guantanamo detainees where people don’t want them; for dragging his feet before finally revealing at least nine lawyers in his department who formerly represented terrorist detainees; and, most recently, for reporting that he failed to disclose in his confirmation hearings seven briefs in which he participated as a lawyer, including ones involving the war on terror.

Even with health care and the economy as the front-burner issues in Mr. Obama’s first year, no Cabinet officer’s department has generated more smoke than Mr. Holder’s. Senators – even the president himself – should be examining these several problems and asking whether Mr. Holder is really up to the job or, perhaps worse, whether these issues add up to an agenda to tip the legal scale sharply in favor of detainee rights and away from national security concerns.Let’s start with the latest flaps because, taken together, they seem to raise questions of legal philosophy at the Department of Justice. In November, Sen. Charles E. Grassley, Iowa Republican, asked Mr. Holder to identify department lawyers who may have conflicts of interest for having represented detainees. In a surprisingly cool response, Mr. Holder said he’d consider it and then sat on it for three months. Finally, last month, he provided an incomplete answer, admitting there were at least nine department lawyers who had represented detainees, identifying just two of them.

Then the department acknowledged this week that Mr. Holder had failed to disclose some of his own work on several briefs, including one on behalf of enemy combatant Jose Padilla, during his confirmation hearings as attorney general, calling it an oversight. A case that went all the way to the Supreme Court would seem to be difficult to forget or overlook.

It does seem to be a fair concern why Mr. Holder, who works for a president promising the most transparent administration in history, would stonewall the Senate and even now fail to provide a complete response on who in his department represented detainees and their current responsibilities. Those who questioned his response, however, prompted quite a sideshow as several prominent lawyers came forward to defend the obligation of an attorney to represent unpopular causes. This neatly sidesteps the real question, which is not whether these lawyers acted properly before they came to Justice, but rather, why Mr. Holder chose to hire so many of them and what they are doing now. Believe me, had the Securities and Exchange Commission hired a suite of Fortune 100 general counsels to enforce securities laws or the Environmental Protection Agency a table full of lawyers from oil companies, such questions would be asked.

Other hard questions Mr. Holder should have to answer include why he feels a lawyer with no prosecutorial experience – who as a human rights advocate referred to military commissions as “kangaroo courts” and said freeing terrorists is a legal “assumption of risk” we must be prepared to take – is qualified to represent the department on detainee matters. Or, for that matter, what Mr. Holder’s hiring of these nine lawyers or his signing of Padilla’s brief might tell us about his own view of detainee rights. After all, because some of those briefs were not produced for his confirmation, that was a conversation the senators did not have with him when it counted.

There are two schools of thought about the legal war on terror. One essentially starts from the premise that terrorist suspects, enemy combatants and detainees should not be tried as “criminals” and are not entitled to the full panoply of constitutional rights afforded to U.S. citizens. Instead, they should be tried in military tribunals, with more limited rights. A very different view, held by many human rights advocates, is that terrorist suspects should be treated as one of our own citizens, even at the risk of returning enemy combatants to the field to attack again.

The U.S. Senate, and the American people, have every right to know who is setting policy for the legal war on terror and in which of these directions they are headed. Mr. Holder would do well to bring less foot-dragging and more forthright answers to these legitimate questions when he comes before the Judiciary Committee next week.

The Washington Times / March 19, 2010 / Opinion / B3

Dangerous Decisions at DOJ (Townhall.com) March 5, 2010

Posted by daviddavenport in Radio Commentaries.
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A recent 5-page letter from U.S. Attorney General Eric Holder to Congress 

Courtesy of Townhall.com

 revealed the shocking news that nine lawyers in the Department of Justice represented terrorist detainees before they joined the Department. This would be like learning that the organized crime unit had hired nine mafia lawyers.

Even more amazing, Congress had asked for this information three months ago, and Holder said he’d “consider it.” No wonder Americans are losing confidence in the legal war on terror.

First came the plan to close Guantanamo, but no senators wanted the detainees in their home states. Then came the fumbled arrest of the Christmas bomber, giving him his Miranda rights like a U.S. citizen. The proposed trial of Khalid Shiekh Mohammed in NY at a projected security would have cost of $200 million. And now this.

Makes you wonder what they would do if they caught Osama bin Laden.

To listen to the audio:  http://townhall.com/TalkRadio/Show.aspx?RadioShowID=11&ContentGuid=7f5119e4-f8b5-4c49-97aa-a9736bc62fb7