Thursday, January 17, 2013

Ninth Circuit Court Gets One Right

The Ninth Circuit U.S. Court of Appeals in San Francisco has a well-earned reputation as the hippiest, dippiest, most-reversed appellate court in these United States.

It’s where the Pledge of Allegiance gets scrutinized for possible eradication, at least, the “under God” part. But every so often, the Court gets something right.

On December 22, a unanimous Ninth Circuit panel reversed a federal district judge’s order to evict the Boy Scouts from their longtime camp and local headquarters in San Diego’s Balboa Park. The ruling came in a case filed by the American Civil Liberties Union (ACLU) in 2001 on behalf of a lesbian couple and an agnostic couple, who basically accused the Boy Scouts of holding traditional values.

In 2003, federal District Judge Napoleon A. Jones Jr. ruled that the Boy Scouts were a religious organization  and therefore ineligible for a public lease.  Judge Jones somehow ignored the Supreme Court’s Dale decision in 2000 upholding the Scouts’ right to their own moral standards.  He also ignored the First Amendment’s religious freedom guarantee.

Facing mounting legal costs, the weasel San Diego City Council bailed in 2004, agreeing to pay their tormentors nearly $1 million in legal fees.  The Scouts stayed on the property and fought on, and although the Scouts finally prevailed, the Ninth Circuit’s opinion makes it clear that the case should have been tossed on arrival, not hanging over the Scouts for 11 years like a sword of Damocles.  None of the plaintiffs or their children ever actually tried to use the facilities and had no demonstrable “harm.”

The Court initially erred in concluding that the Scouts had barred the plaintiffs from using the property – giving the couples standing – and the case went forward. However, the plaintiffs admitted that they had not tried to use the facilities because they break out in hives if they’re within a canoe’s length of anyone in a neckerchief.  They didn’t put it this way, but that’s the gist.

In a concurring opinion, the Ninth’s Judge Andrew J. Kleinfeld wrote, “Revulsion for a group so intense that one cannot bear to be on property they manage cannot, in a tolerant society, be deemed harm sufficiently concrete as to confer standing to sue.”

That’s a relief, because otherwise, people could sue every time they’re annoyed by someone with a contrary opinion. Come to think of it, that’s pretty much the Left’s overall approach to dismantling the First Amendment in the name of “tolerance.”

In the case, Barnes-Wallace vs. City of San Diego and Boy Scouts of America -- Desert Pacific Council, the aggrieved couples claimed that the Scouts’ exclusion of atheists, agnostics and homosexuals as members or volunteers constitutes unlawful discrimination on public property.

In a 2009 U.S. Supreme Court amicus brief in defense of the Scouts in the San Diego case, American Civil Rights Union General Counsel Peter J. Ferrara summarized the absurdity of the plaintiffs’ claim of injury:

“[T]hey did not suffer any loss of recreational enjoyment caused by the Boy Scouts. That was caused by the Plaintiffs themselves in refusing to use the facilities open to them. Quite to the contrary, it was the Boy Scouts who spent millions of dollars of their own funds precisely to offer recreational enjoyment open to them. The ‘emotional harm’ is the purely psychological injury of being offended by the traditional moral values that the Boy Scouts hold, and uphold. This does not remotely amount to standing under the precedents of this Court.”

In 2010, the Supremes declined to hear the case, and it bounced back to the Ninth, where oral arguments were heard most recently in June 2011. In the December 2012 ruling, Judge William C. Canby, Jr. wrote that the city of San Diego did not violate the California or United States Constitutions or the San Diego Human Dignity Ordinance in granting the Scouts a new 25-year lease in 2002 for the use of 18 acres of the park for an annual rent of $1, plus a $2,500 annual “administration fee.”

 The city also did not err in granting the Scouts a rent-free, 25-year agreement in 1987 to use nearby Fiesta Island in Mission Bay Park to build a Youth Aquatic Center.

The Ninth’s opinion notes that the Scouts’ purpose in building the facilities, which include $1.7 million in capital improvements to Camp Balboa and another $2.5 million to Fiesta Island, was not to “advance religion” but to “provide facilities” for camping, swimming and other “youth activities,” open to all –including the plaintiffs.

In dismissing the plaintiffs’ claims, the Court cited the “Lemon test” from the 1971 Lemon v. Kurtzman U.S. Supreme Court case: “to be constitutional, the government conduct at issue must: (1) have a secular purpose, (2) have a primary effect that neither advances nor inhibits religion, and (3) not foster an excessive government entanglement with religion.”

The plaintiffs failed miserably to prove that the city violated any of these conditions.

Although it took more than a decade, the Left’s chosen vehicle to bully the Boy Scouts turned into a lemon.


'Mosque buster' claims he can stop 'tide of Islam' by giving free advice on how to block building plans for new places of worship

A planning lawyer and self-styled 'mosque buster' claims he is fighting to stop the 'tide of Islam' by successfully blocking plans for the building of mosques across the UK.

Gavin Boby, once linked to the far-right English Defence League, boasts he has already blocked plans for 16 out of 17 mosques being built.

Under the banner of the Law and Freedom Foundation, he calls for people to come to him for free professional legal help in opposing mosque proposals and claims that Islam encourages paedophilia, sexual abuse and pimping.

He claims to help followers resist planing applications for mosque developments by raising opposition with councils.

The 48-year-old says in a video posted online: 'If anyone out there knows of an application for a new mosque, a cultural centre for some phoney community centre or some multi-faith inter-faith harmony institute then let me know.'

Mr Boby, from Bristol, runs a planning consultancy but also provides legal assistant for those who oppose mosque developments, according to the Sunday Times.

On the foundation website he claims to have stopped the construction of 16 out of 17 mosques in total.

These include mosques in York, Blackpool, Bolton, Ealing and one in Kirklees, West Yorkshire, which was to replace 'the beautiful old Jolly Sailor Pub', according to the site.

Mr Boby reportedly launched the service with a mock-up of the Ghostbusters logo - swapped for Mosquebusters - in which the ghost was replaced by hate preacher Abu Hamza.

Vacancies for volunteers were posted on the EDL website.

EDL has since endorsed the Law and Freedom Foundation, saying it is a 'great organisation' on Twitter and referring its followers who have a proposed mosque in their area to Mr Boby.

In the website's 'about section' it explains the three threats to the survival of state authority in Britain and Europe.

The third, it reads, is : 'Ethnic division, particularly between Islamic and non-Islamic society, and the violence at the heart of Islamic doctrine. This is the most visible problem, and the one that people will blame.

'Political and intellectual elites are undermining law or freedom. So we need to take what action we can to preserve them ourselves.'

Mr Boby has written an online guide that show how local citizens can make a legal case against mosques.

In the guide it reads: 'Let councils know that they're on the hook for their decisions. Be relentless. Push.'

He also suggests opposing an Islamic centre on the grounds of 'parking congestion', 'disturbance' and 'community relations'.
The Jolly Sailor pub in Kirklees, West Yorkshire, which Mr Boby described as 'beautiful' and 'old'. There were proposals to turn the pub in to a mosque but Mr Boby helped block the plans

The Jolly Sailor pub in Kirklees, West Yorkshire, which Mr Boby described as 'beautiful' and 'old'. There were proposals to turn the pub in to a mosque but Mr Boby helped block the plans

His advice is rooted in legal arguments, as he continues to suggest emphasising the proposed project will 'cause unacceptable pollution' from traffic and is a hazard to schoolchildren as it will 'bring outsiders with no connection to the area'.

He appears to be driven by an apparent ideological hatred of Islam, referring in a video posted on YouTube to recent sex abuse cases, and claims mosques are 'not like churches' and are instead used to instruct followers to commit acts of paedophilia, sexual abuse and pimping.

He says: 'Islamic doctrine permits, encourages and to a certain extent mandates Muslim men to take non-Muslim women as slaves to be used for sex.

'In order to stop the Islamic doctrine, which is the root of this problem, you have to prevent further mosques from being built.'

Councils contacted by the Sunday Times said Mr Boby had not been instrumental in blocking the development of local mosques.

Mr Boby told MailOnline: 'I are (sic) extremely proud that, when these concerned neighbourhoods approach us for help, we enable them to use the laws and consultation procedures that exist for their protection.'

A spokesman for the EDL said: 'We support his organisation wholeheartedly and send many people from different communities with different issues concerning mosques in their area.'


I'll protect faith from attack by militants who hate religion, says British government minister

Traditional religious freedoms are under assault from the ‘intolerance of aggressive secularism’, a Cabinet minister will warn today.

Communities Secretary Eric Pickles will today attack court rulings against the right of Christians to wear crosses at work and legal action to prevent prayers before council meetings.

He will insist that faith provides a ‘clear moral compass’ for society and declare that the Coalition does ‘do God’, unlike the last Labour government.

Mr Pickles’s comments come on the day of a crunch verdict from the European Court of Human Rights, which will rule whether four Christians were discriminated against at work – including two women who claim they were forced out of their jobs for wearing the cross.

He is vowing to change UK law to support the right of people to discreetly display a symbol of faith in their workplace if their case is rejected.

Addressing the think-tanks British Future and Policy Exchange in London, Mr Pickles will say: ‘Faith provides a clear moral compass and a call to action that benefits society as a whole. At a time when Christians are under attack for their beliefs in different parts of the world, I am proud of the freedom of belief that exists in Britain.

‘But in recent years long-standing British liberties of freedom of religion have been undermined by the intolerance of aggressive secularism: taking people to task for wearing a cross or a rosary, beginning costly legal actions against council prayers – as if they had nothing better to do.

‘We’re committed to the right of Christians and people of all beliefs to follow their faith openly, wear religious symbols and pray in public.’

Bishop Michael Nazir-Ali, the former bishop of Rochester, said that it would be ‘clear discrimination’ to allow employers to ban the cross whilst letting those of other faiths wear symbols and clothing from their religions.

He added that it would ‘further accelerate the undermining of this country’s Judeo-Christian foundations by aggressive secularism and naive multi-culturalism’.

In his speech, Mr Pickles will also reiterate previous demands that all immigrants should learn English, saying it is ‘incomprehensible’ that no one speaks the language in one in 20 households. Parents who do not ensure their children learn English are ‘condemning them to a limited life’, he will say.

He will attack the ‘old statist policies’ such as the decision to pay for translation ‘instead of trusting people to learn the language’.

‘People should be able to talk to and understand one and another in a nuanced way. The reality is you need English to succeed. We all miss out, our country is the poorer, if people can’t speak our language, if they are unable to participate or make an economic contribution.

‘English is the passport to prosperity the world over. From Mumbai through to Beijing every striving parent is trying to get their kids to learn English,’ he will add.


 CofE 'will be sued over gay marriage': Human rights law 'undermines' Cameron plans

David Cameron’s plans for gay marriage will leave churches open to being sued under human rights legislation unless they agree to same-sex unions.

Legal advice sent to the Prime Minister says that churches that refuse to marry homosexuals would be banned from using council facilities such as village halls.

The paper, written by Aidan O’Neill – a leading human rights lawyer at centre-left Matrix Chambers – also says that Christian teachers who refuse to take classes discussing gay marriage could be legitimately fired.

Parents who support traditional marriage would be barred from fostering or adopting and would have no right to prevent their children being taught about gay marriage in school.

Most explosively, the document argues that the exemption granted to the Church of England by the Coalition Bill to prevent it having to conduct gay marriages is ‘eminently challenge-able’ in the European Court of Human Rights since the established church has a legal obligation to marry anyone in their local parish.

And it warns that the Government’s insistence that protections are put in place for other religious groups who don’t want to marry homosexuals could be undermined by evolving European human rights law.

It emerged as senior Government sources confirmed that a Commons vote on gay marriage is planned before mid-February.

Details of the legal advice are contained in a letter from former Archbishop of Canterbury Lord Carey to the Prime Minister.

Lord Carey warns that the plans will lead to ‘serious and wide-ranging conflict between religious institutions and local authorities’ and argues that the legal opinion ‘demonstrates why the legislation is unworkable’.

He concludes: ‘These proposals are divisive, have no mandate and are poorly thought-out.’

Mr O’Neill’s legal opinion, which was commissioned by the Coalition for Marriage, points out that local authorities have a legal obligation to uphold the Equalities Act, giving them the right to bar churches and employees who uphold a traditional view.

A Government source said: ‘It is precisely because the Church of England has a legal duty to marry that we have created a legal lock to ensure this doesn’t apply to same-sex couples.’

A Downing Street source said the Prime Minister would ‘press ahead’ with the plans over the next month and that No 10 ‘has legal advice of our own’.



Political correctness is most pervasive in universities and colleges but I rarely report the  incidents concerned here as I have a separate blog for educational matters.

American "liberals" often deny being Leftists and say that they are very different from the Communist rulers of  other countries.  The only real difference, however, is how much power they have.  In America, their power is limited by democracy.  To see what they WOULD be like with more power, look at where they ARE already  very powerful: in America's educational system -- particularly in the universities and colleges.  They show there the same respect for free-speech and political diversity that Stalin did:  None.  So look to the colleges to see  what the whole country would be like if "liberals" had their way.  It would be a dictatorship.

For more postings from me, see TONGUE-TIED, GREENIE WATCH,   EDUCATION WATCH INTERNATIONAL, FOOD & HEALTH SKEPTIC, AUSTRALIAN POLITICSDISSECTING LEFTISM, IMMIGRATION WATCH INTERNATIONAL  and EYE ON BRITAIN (Note that EYE ON BRITAIN has regular posts on the reality of socialized medicine).   My Home Pages are here or   here or   here.  Email me (John Ray) here


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