Wednesday, August 30, 2023
City Can’t Ban Farmer From Market for Views on Same-Sex Marriage, Judge Rules
The original 2017 decision by East Lansing to exclude farmers Steve and Bridget Tennes and their Country Mill Farms from the market “constituted a burden on plaintiffs’ religious beliefs,” District Judge Paul Maloney ruled last week, citing Supreme Court precedent.
Tennes and his wife, who are Catholic, “were forced to choose between following their religious beliefs and a government benefit for which they were otherwise qualified,” Maloney, of the District Court for the Western District of Michigan, wrote in his Aug. 21 opinion.
“He serves and welcomes everyone to his stand [at the farmers market]. No one is ever turned away,” lawyer John Bursch, a senior counsel at Alliance Defending Freedom, said of Tennes, The Associated Press reported.
“The District Court’s decision rightly protects Steve’s freedom to operate his business according to his convictions,” said Kate Anderson, another senior counsel at Alliance Defending Freedom who argued before the court in July 2021 on behalf of the Tenneses and their farm. “Country Mill has continued to participate in the farmers market without issue during this litigation.”
East Lansing first barred Country Mill Farms from its farmers market in 2017 after the Tenneses posted on Facebook in August 2016: “Due to our religious beliefs, we do not participate in the celebration of a same-sex union.” The post was in response to a question about the family farm’s services as a wedding venue.
Jay Richards, director of The Heritage Foundation’s Richard and Helen DeVos Center for Life, Religion, and Family, praised the Michigan court ruling in an email to The Daily Signal, Heritage’s multimedia news organization.
“The District Court made exactly the right judgment,” Richards, also the think tank’s William Simon senior research fellow in religious liberty and civil society, said. “East Lansing was using the cover of ‘nondiscrimination’ not to protect its citizens, but, to, well, to discriminate against religious believers with whom it disagrees.”
As The Daily Signal previously reported, the Tenneses filed a federal lawsuit in May 2017 against East Lansing over its decision to ban them from selling produce at the farmers market even though their farm is 22 miles outside the city in a different jurisdiction.
That September, The Daily Signal reported, Maloney ordered East Lansing to reinstate the couple at the farmers market while the lawsuit over their refusal to host same-sex weddings made its way through court. At the time, the couple hosted traditional weddings at their farm.
Heritage’s Richards echoed the sentiment of the Tenneses’ lawyer.
“Mr. Tennes serves everyone, but not to participate in activities that violate his religious and moral convictions,” Richards said. “Americans shouldn’t have to surrender their free exercise of religion when they enter the market. It’s nice to see that this U.S. District Court agrees.”
The Tenneses told The Daily Signal in a 2017 interview that East Lansing’s farmers market is the largest market where they sell.
“Since June 1, [2017,] we’ve already missed three and a half months of being able to attend East Lansing Farmer’s Market, where we’ve served everyone for the last seven years,” Steve Tennes told The Daily Signal that September.
The Tenneses said they never before had faced a discrimination complaint of any kind.
The city initially responded to the couple’s lawsuit by filing a motion to dismiss the case, which Maloney denied while allowing Country Mill Farms to continue to sell at the farmers market as the case continued.
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South Carolina Supreme Court Upholds Ban on Post-Heartbeat Abortions
In June 2022, in Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court said what we can all read for ourselves, that the U.S. Constitution “does not confer a right to abortion.”
That shifted the venue for those who want to eliminate any legal protection for the unborn to state courts and state constitutions. In January, the South Carolina Supreme Court held that a ban on most abortions after detection of a “fetal heartbeat” violated the South Carolina Constitution.
That court has now examined a slightly modified statute and, this time, found it constitutional.
The Fetal Heartbeat and Protection from Abortion Act of 2021 allowed abortions after detection of a fetal heartbeat only in cases of “fetal anomaly,” when the pregnancy resulted from rape or incest, or when the abortion was “necessary … to prevent the death of the pregnant woman or to prevent a serious risk of a substantial and irreversible physical impairment of a major bodily function.”
Planned Parenthood went to state court, arguing that the law violated the state constitution.
The South Carolina Constitution does not explicitly protect a right to abortion and uses the word “privacy” only once. Article I, Section 10 provides: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated.”
That’s an unusual provision. Some state constitutions, such as in Alaska, California, and Montana, protect a stand-alone “right of personal privacy.” South Carolina and Illinois, however, connect privacy directly to the right to be free from unreasonable searches and seizures—language similar to the Fourth Amendment in the U.S. Constitution. The Illinois Supreme Court held in 2013 that, in this context, “privacy” did not include abortion.
The South Carolina Supreme Court now had its chance to address the issue.
The court’s first decision in Planned Parenthood v. South Carolina (Planned Parenthood I), however, was so fractured that only its 3-2 judgment that the abortion ban was unconstitutional seemed clear. Each of the justices in the majority offered different reasons for that conclusion, and the two dissenters each wrote their own opinion explaining their position.
Two justices, for example, plucked “privacy” from its search-and-seizure context and said that it included a right to abortion. Justice John Few disagreed with that conclusion, but still voted to find the law unconstitutional. He focused on the possibility that women might not know they are pregnant, and therefore would be unable to make an informed abortion decision until after a fetal heartbeat can be detected and the opportunity to choose abortion no longer exists.
That, Few wrote, made the law “arbitrary.”
The Legislature went back to the drawing board, attempting to address the issue that concerned him. The basic ban on most abortions after a detectable fetal heartbeat remained, but a revised section describing the Legislature’s findings and the statute’s purposes put less emphasis on the woman’s informed choice and more on how the Legislature balanced “a woman’s interest in autonomy and privacy” against “the interest of the unborn to live.”
In a 4-1 decision (Planned Parenthood II), the court concluded that “the balance struck by the legislature was [not] unreasonable as a matter of law” and, therefore, upheld the revised statute.
While pro-life advocates are cheering this result, this decision has its own serious flaws. The most important constitutional question was whether the reference to “privacy” in Article I, Section 10, was limited to the search-and-seizure context or, freed from that context, included a right to abortion.
The court in Planned Parenthood I did not clearly answer that question. Few and the two dissenters rejected the idea that “privacy” could be pulled out of its context and given a broader meaning, but it was not a formal holding of the court.
Planned Parenthood II is even more confusing on this important point. The court “reaffirm[ed] our finding from Planned Parenthood I that there is no fundamental constitutional right to abortion under Article I, Section 10.” Just two sentences later, the court said that “in the interest of unity, we shall assume only for purposes of our analysis and decision today that the privacy provision reaches beyond the search-and-seizure context to include bodily autonomy.”
Wait, what?
In Planned Parenthood I, Few “rejected” the idea that “privacy” in Article I, Section 10, applies beyond search and seizure. Similarly, Justice George James wrote in dissent that “a citizen’s right to be free from unreasonable invasions of privacy does not extend beyond the context of searches and seizures.”
Yet Few and James both signed onto the majority opinion in Planned Parenthood II, asserting that “the privacy provision reaches beyond the search-and-seizure context.”
Reaffirming a precedent means, by definition, that the previous decision affects the later one. But “assuming” that a holding applies only to the present case means that it does not affect later ones. This is made all the more confusing when both decisions address the same point of law—and come to different conclusions. All “in the interest of unity,” no less.
The confusion continues. In his Planned Parenthood I dissent, Justice John Kittredge wrote that the reference to privacy “is part of the search-and-seizure clause and is not a standalone provision.” There is, he wrote, “no language in Article I, Section 10 of the South Carolina Constitution that supports an interpretation of a privacy right that would encompass a right to abortion.”
In his Planned Parenthood II majority opinion, however, Kittredge wrote that (at least for this one decision) “the privacy provision reaches beyond the search-and-seizure context to include bodily autonomy.” Whew!
In a disturbing sign of the times, most news reports on Planned Parenthood II—from ABC, The Associated Press, Axios, Detroit News, The Hill, the Los Angeles Times, NBC, PBS, Politico, U.S. News & World Report, and many others—made sure everyone knew the court was “all-male,” but didn’t bother explaining why that fact was relevant.
By leaving that innuendo hanging, the media contribute to the public’s misperception that courts decide cases based on personal opinions and politics (or in this case, gender), rather than law.
Courts decide cases in two parts: the judgment, which identifies the winner, and the opinion, which explains the judgment. Both are important. The judgment decides the case before the court; the opinion can influence cases beyond that one.
Especially when a case involves a volatile issue, such as abortion, courts have a duty not only to find the right answer, but to explain it so that the public can better understand and evaluate what the judicial branch is doing.
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More Courts Uphold Bans on ‘Gender-Affirming’ Care for Minors. Is Supreme Court Next Stop?
Activist judges who believe the propaganda on “lifesaving” “gender-affirming” care for minors are weeping into their lattes this month as a second federal appellate court has just upheld a duly enacted state law banning these practices for children.
A few short weeks after the U.S. Court of Appeals for the 6th Circuit upheld Tennessee’s law banning “gender-affirming” care for minors in the state, the 11th Circuit followed suit and upheld Alabama’s law prohibiting the same.
In an opinion for the unanimous three-judge panel written by Judge Barbara Lagoa, the court overturned a lower court order that had enjoined a portion of Alabama’s Vulnerable Child Compassion and Protection Act.
The act makes it a felony, punishable to up to 10 years in prison, to administer “gender-affirming care” to minors—including chemical castration and radically transformative body modification procedures.
The state’s appeal from the lower court’s decision halting the law centered specifically on section 4(a)(1)-(3), the portion of the law banning the administration of puberty blockers or “cross-sex hormones.”
But as the 6th Circuit did in its decision upholding the Tennessee law, the 11th Circuit wasted no time in both overturning the lower court decision and going so far as to hold that the lower court had abused its discretion in applying the wrong standard of judicial review.
Lagoa wrote, “The plaintiffs have not presented any authority that support the existence of a constitutional right to ‘treat [one’s] children with transitioning medications subject to medically accepted standards.’ Nor have they shown that [the law] classifies on the basis of sex or any other protected characteristic. Accordingly, section 4(a)(1)-(3) is subject only to rational basis review.”
There are three standards for judicial review when a court must determine the constitutionality of a particular law: the rational basis test, the intermediate scrutiny test, and the strict scrutiny test.
The intermediate and strict scrutiny tests are more restrictive standards of review than rational basis, and more difficult for a state to satisfy. Rational basis, however, is used when no fundamental right (such as free speech, voting, or religion) or suspect classification (such as race or national origin) is at issue. Under this standard, the state must simply show that the law is rationally related to a legitimate governmental interest.
This standard, the 11th Circuit held, was easily satisfied by the state of Alabama, and the state’s regulation of the use of puberty blockers and cross-sex hormone treatments for minors was to be afforded a “strong presumption of validity.”
The court continued with a discussion of whether the right to treat one’s children with puberty blockers and cross-sex hormones could be found within the more general 14th Amendment right to direct the upbringing of one’s children—as plaintiffs had claimed.
The court found it did not.
Citing the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision of last June, the court noted that in order to determine whether a claimed right is one of the “substantive rights” guaranteed by the 14th Amendment, “Courts must look to whether the right is ‘deeply rooted in [our] history and tradition’ and ‘essential to our Nation’s scheme of ordered liberty.’” But, it continued, “the use of these medications in general—let alone for children—almost certainly is not ‘deeply rooted’ in our nation’s history and tradition.”
Because the judges were being asked to break new ground in the field of substantive due process under the 14th Amendment, the court wrote that it was bound to exercise the “utmost care.” This, Lagoa wrote, the lower court had not done.
In fact, she pointed out that the lower court had “grounded its ruling in an unprecedented interpretation of parents’ fundamental right to make decisions concerning the ‘upbringing’ and ‘care, custody, and control’ of one’s children,” and then applied the wrong judicial review standard of this new “right,” to boot.
As far as the plaintiffs’ argument that the Alabama law was subject to intermediate scrutiny because it made sex-based classifications (relative to “gender nonconformity”), the court was unconvinced.
While the lower court had applied the Supreme Court’s 2020 decision, Bostock v. Clayton County, to equate “gender nonconformity” with “sex,” the appellate court disagreed, noting that the Alabama law treated both sexes equally. Because it “classifie[d] on the bases of age and procedure, not sex or gender nonconformity, [it was] therefore not subject to any heightened scrutiny.”
The court also slapped down the lower court’s application of Bostock—a case with a limited holding, and one that solely concerned the prohibition against sex discrimination in employment found in Title VII of the Civil Rights Act.
Lagoa wrote, “The Equal Protection Clause contains none of the text that the Court interpreted in Bostock. It provides simply that ‘[n]o State shall … deny to any person within its jurisdiction the equal protection of the laws.’”
She added, “Because Bostock therefore concerned a different law (with materially different language) and a different factual context, it bears minimal relevance to the instant case.”
Within a few short days of the 11th Circuit’s decision, a Missouri state court upheld that state’s own SAFE (Save Adolescents from Experimentation) Act—the first trial court victory to date in cases interpreting laws that ban the mutilation of children in the name of “gender-affirming” care.
In declining the plaintiffs’ request to halt the law, Judge Stephen R. Ohmer ruled, “The science and medical evidence is conflicting and unclear” and that “the evidence raises more questions than answers.”
Nearly simultaneously, however, a Texas state court halted the operation of that state’s “transgender” medical procedures ban. The state immediately filed an appeal to the Texas Supreme Court, which temporarily halts the trial court’s ruling. The Texas attorney general’s office responded to the trial court’s decision by saying that it would “continue to enforce the laws duly enacted by the Texas Legislature and uphold the values of the people of Texas.”
Still pending before a federal trial court in Florida is a challenge to that state’s “gender-affirming” medicine ban for minors as adopted by the Florida boards of Medicine and Osteopathic Medicine. That case should now be relatively easy to decide since that ban is nearly identical to the Alabama law that the 11th Circuit just upheld.
In a previous case, Adams v. St. Johns County School Board, the 11th Circuit determined (again in an opinion written by Lagoa) that a school’s sex-segregated bathroom policy was not a violation of the Constitution because, just as the Alabama law does, it treated all students equally, regardless of sex.
This is good news for the state of Florida as officials chart a path forward in defending their “gender-affirming” medical ban.
With 22 states having enacted restrictions on “transgender” medical interventions for minors, and with courts in different states and different federal circuits reaching different conclusions in terms of upholding or overturning such laws, the battle to protect the minds and bodies of adolescent children seems ultimately destined for the Supreme Court.
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Australia: Wrongly jailed father successfully sues judge for false imprisonment in landmark case
Salvatore Vasta finally went too far with eccentric judgments. He comes from an interesting family of ultimately Sicilian origin. His father, Angelo Vasta, was born in my home town of Innisfail and was also a prominent senior judge -- but was so tainted with apparent corruption that he was removed from office by by an act of parliament. An extraordinary family
A father who was wrongly jailed by a judge for an alleged contempt of court in a family law case has been awarded more than $300,000 in damages after he took the rare step of suing the judge personally.
In a landmark decision on Wednesday, Federal Court Justice Michael Wigney held Federal Circuit and Family Court Judge Salvatore Vasta could not rely on a judicial immunity and was personally liable for the man’s false imprisonment. The Commonwealth and the state of Queensland were also held liable.
The father of two, given the pseudonym Mr Stradford, was awarded a total of $309,450 in damages.
Vasta alone was ordered to pay $50,000 of the total sum in exemplary damages for false imprisonment and deprivation of liberty. Exemplary damages, which are punitive rather than compensatory, are awarded in rare cases.
Each of Vasta, the Commonwealth and the state of Queensland were ordered to pay a combined $59,450 of the total to cover Stradford’s personal injury and loss of earning capacity.
Vasta and the Commonwealth were also ordered to pay $35,000 for false imprisonment and deprivation of liberty, while Vasta and the state of Queensland were ordered to pay $165,000 for false imprisonment.
Stradford launched proceedings against Vasta, the Commonwealth and the state of Queensland in the Federal Court in 2020 after the Full Court of the Family Court overturned Vasta’s 2018 order imprisoning him in that state.
The Full Court said in a scathing judgment in 2019 that it would be “an affront to justice” to leave in place the declaration that Stradford had committed a contempt of court and the order imprisoning him for a maximum of 12 months.
“What occurred here ... constituted a gross miscarriage of justice,” the Full Court said at the time. It said Vasta had no power to make the declaration or order and no factual basis for doing so.
Vasta has been the subject of a series of excoriating appeal judgments, and is facing a second lawsuit brought by another man he jailed for an alleged contempt of court. That case was paused pending the outcome of the Stradford case.
The Federal Court heard Vasta told Stradford, whose former wife strenuously opposed him going to jail, to “bring your toothbrush” after he allegedly failed to hand over all his financial records in the family law case.
Neither Stradford nor his former wife had lawyers acting for them in the property dispute and the man insisted he had “in good faith tried to provide every aspect of my financial life”.
“Don’t tell me ‘I tried’,” Vasta told the man. “Rubbish ... I didn’t come down in the last shower.
“And that’s the strange thing, is you really don’t think that the court ever will jail you for contempt. You’re about to find that lesson is going to be a very hard one for you to learn.”
Stradford was held for seven days in police custody and prison, during which he said he was bashed in prison, became suicidal and woke up to his cellmate strangling him. He was eventually released from custody after obtaining a stay to prevent the order jailing him taking effect pending his court challenge.
Under the doctrine of judicial immunity, judges cannot ordinarily be sued for decisions they make, and Vasta sought to rely on this immunity in the Stradford case.
Wigney found this immunity did not protect Vasta. He said Vasta had engaged in a “gross and obvious irregularity of procedure” and denied Stradford “any modicum” of natural justice or procedural fairness.
Vasta was a Federal Circuit Court judge at the time he imprisoned Stradford and is now a judge of the Federal Circuit and Family Court, after the two courts were merged.
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My other blogs. Main ones below:
http://dissectleft.blogspot.com (DISSECTING LEFTISM)
http://edwatch.blogspot.com (EDUCATION WATCH)
http://antigreen.blogspot.com (GREENIE WATCH)
http://australian-politics.blogspot.com (AUSTRALIAN POLITICS)
http://snorphty.blogspot.com/ (TONGUE-TIED)
http://jonjayray.com/blogall.html More blogs
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Kristina Pimenova, once said to be the most beautiful girl in the world. Note blue eyes and blonde hair
Bliss: What every woman wants: to feel safe and secure in the arms of her man. Robert Irwin and Rorie Buckey. See
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