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An Arizona divorce case involving a gender dysphoric child led to an appellate court ruling invoking the constitutional rights to parent and engage in free speech.
The couple divorced in 2010 with both parents given joint custody of their three children. The father was given final legal decision-making authority over education and medical care for the child in question, who was born male in 2007. The mother said the boy liked to wear girl’s clothing at home and let him wear a skirt to school. The mother also sent a book to the teacher to read to the class, entitled Princess Boy. The father said he had never noticed any preference for female items in the child’s behavior and engaged a professional counselor for the boy. He asked the court to be made the boy’s primary residential parent and to limit the child’s time with the mother. After a lot of back and forth, the lower court ordered the mother to remove female-oriented toys from the home and not to dress the boy in female clothing or address him as ‘she’ or ‘her’. The mother was put under a gag order not to discuss gender issues with the boy or provide any of her three children materials about gender preference. Although the counselor made no diagnosis of gender dysphoria at first, other professionals were brought into the case who did. Meanwhile, the father alleged that the mother routinely violated the court’s orders, something the mother denied. He said, she said. The lower court ordered both parents not to discuss gender identification issues with the child and to refer all the child’s questions on the subject to the professional counselor. Neither parent was allowed to promote or discourage a particular gender identification for the child. On appeal, the higher court relied on “the fundamental right of parents to make decisions concerning the care, custody, and control of their children” previously found under the Due Process clause of the 14th Amendment by the Supreme Court [Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality opinion)]. The Arizona appellate court held that the lower court erred in going beyond just assigning decision-making authority to one parent. A trial court has no say in what decisions are actually made, generally speaking, and – if it disagrees with the parent’s decisions - all it can do is reallocate the decision-making authority. Therefore, the decision as to which course of therapy to follow belongs to the parent awarded decision-making authority, in this case the father. The appellate court also vacated the lower court’s order prohibiting both parents from talking about gender identification issues with the child, as a violation of the free speech rights of both parents and also the child. The appellate court said that a state statute permitting courts to restrict what is in essence ‘parenting time’ cannot be interpreted in a way that violates free speech rights. [opinion at p.19]. Long story short, the lower court’s orders violated the parents’ constitutional rights to parent and to engage in free speech. You’ll notice that the appellate court did not come down on one side of the political transgender issue or the other. It stayed away from the ultimate issues involved. Instead, the appellate court left the disposition of these matters to the parents, which is probably a good thing given how many left-wing judges there are. Let me make a couple of things clear: First, there have always been transgender people and nobody should hate them. However, I strongly object to the government deliberately trying to create more transgender people. In Fairfax County, Virginia near where I live, the public schools teach gender spectrum and gender fluidity, starting in kindergarten. That’s social engineering and it needs to be stopped. It’s just more antics of the political Left to tear down the established order so the Left can take over everything. If they can confuse you about whether you’re a boy or a girl, they can confuse you about anything, including all political questions. Remember, for the Left, the issue is never the issue. The issue is always the revolution. Articles on transgenderism from the Right commonly observe that gender dysphoric children often grow out of it – it’s just a phase they’re going through – and that to give kids drugs to start them on the road to gender reassignment surgery is nothing short of child abuse. Decisions like those from the Arizona appellate court protect the rights of parents to influence the outcome for their own children. It’s up to parents to use those rights aggressively and to stand up to the insanity that has engulfed our nation that is by design trying to turn little boys into little girls, and vice versa - all for the benefit of the radical Left that wants to fundamentally transform and ultimately enslave us all. Parents, heed the call. How America Got Its Mojo – our constitutional exceptionalism in a nutshell
http://www.constitutionnext.com/blog/american-exceptionalism-in-a-nutshell 5A,14A – federal court strikes Trump’s DACA rescission on procedural (APA) grounds; defers ruling on equal protection and due process claims https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2017cv2325-70 Conflict of visions of national injunctions on display in sanctuary cities case – ‘narrow questions of law’ as limiting principle? http://reason.com/volokh/2018/04/20/the-seventh-circuit-splits-on-the-nation Separation of Powers – federal appeals court rules executive cannot condition grants to sanctuary cities on immigration enforcement cooperation https://www.washingtontimes.com/news/2018/apr/19/trump-loses-appeal-punish-sanctuary-cities/ 1A Religion: New Jersey school gets sued for Islamic indoctrination in violation of the First Amendment https://www.thomasmore.org/news/new-jersey-middle-school-instructs-students-islam-true-faith-thomas-law-center-files-federal-lawsuit-must-see-video/ 1A: thuggish tactics of SPLC, CAIR, Antifa, etc. imperil free speech rights of those exposing the truth about Islam – getting events cancelled, social media storms, etc. https://leohohmann.com/2018/04/13/have-us-christians-already-lost-the-right-to-publicly-speak-against-islam/ 1A: Muslim World League demands Europe ban hate speech that is protected under U.S. First Amendment http://www.breitbart.com/london/2018/04/12/islam-demands-europe-ban-religious-hate/ 1A: Trump-appointed judge, in dissent, would have found city campaign finance limit a violation of free speech http://www.breitbart.com/big-government/2018/04/20/trump-judge-pushes-for-original-meaning-of-1st-amendment/ 1A Freedom of the Press – Series explains how free press understood at the Founding, protects citizen journalists, etc. http://reason.com/volokh/2018/04/25/evidence-from-around-the-framing-the-fre + http://reason.com/volokh/2018/04/24/freedom-for-the-press-as-an-industry-or + http://reason.com/volokh/2018/04/21/do-ordinary-speakers-have-lesser-first-a 2A: Illinois is sued for banning home day-care operators from having guns in their homes http://freebeacon.com/issues/gun-rights-groups-file-suit-behalf-illinois-day-care-operators/?utm_source=Freedom+Mail&utm_campaign=47f55f78b8-EMAIL_CAMPAIGN_2018_04_19&utm_medium=email&utm_term=0_b5e6e0e9ea-47f55f78b8-45628225 2A: federal judge in Massachusetts upholds state’s AR-15 ban in flawed opinion botching history and precedent https://www.dailysignal.com/2018/04/11/bungling-judicial-precedent-federal-court-upholds-ar-15-ban/?utm_source=TDS_Email&utm_medium=email&utm_campaign=CapitolBell&mkt_tok=eyJpIjoiTURNNU5XVXhZbVF3WVRZNCIsInQiOiJxaEVEOFdHd1VyR0E0MGRNbVRYbzRDeVZnMVllSnBZVmJoUHJaVThUR29uekRuU1BiYWZaTXM3RmlmMGpkRVN0QmtMeVA3c21sQmo2SCtcL05yQTczYVBBXC9FUEhpZDRSTXZhbFJNaTNiZkVpTnh3XC9lY1JBbVJUOGE3QU9OanpyaSJ9 2A: ‘lost’ CDC study shows there are 2.46 million defensive gun uses in the U.S. each year. http://bwcentral.org/2018/04/newly-revealed-government-statistics-hidden-from-public-dismantle-liberal-gun-control-narrative/ 14A: Connecticut human rights commission directs employers not to discriminate against job applicants with dishonorable discharges https://www.theday.com/military-news/20180419/employers-directed-not-to-discriminate-based-on-military-discharge-status 14A: “ Court Rules Illegal Aliens Can Sue over “Discriminatory Employment Policy” Requiring Green Cards” https://freenorthcarolina.blogspot.com/2018/04/court-rules-illegal-aliens-can-sue-over.html 14A: Justice Department sides with Asian-Americans applicants in discrimination suit against Harvard https://www.politico.com/blogs/under-the-radar/2018/04/09/harvard-justice-affirmative-action-510570 Commerce Clause – can one state impose agricultural regulations on, or send enforcers into, other states? http://www.jeffersonpolicyjournal.com/missouri-a-g-defends-virginias-sovereign-economic-interests/?utm_source=newsletter&utm_medium=email&utm_campaign=virginias_latest_policy_news_from_jefferson_policy_journal&utm_term=2018-04-19 Deference – statistics show Chevron reduces partisan judicial decision-making, or diminished judicial independence and institutionalized judicial bias, depending on your POV http://www.libertylawsite.org/2018/04/12/chevron-deference-administrative-state-philip-hamburger/ One Person One Vote –constitutional amendment requiring ‘compact districts’ proposed as solution to gerrymandering http://www.libertylawsite.org/2018/04/23/the-compactness-solution-to-gerrymandering/ Separation of Powers – end today’s cross-delegation mess by enacting amendment cut from original Bill of Rights that no branch shall exercise powers vested in another branch https://freedomoutpost.com/the-bill-of-rights-is-missing-an-amendment/ Fringe-to-mainstream process of acceptance of new theories shows importance of free speech in science. http://quillette.com/2018/04/13/scientific-importance-free-speech/ Thomas Jefferson Says: Sure, Take Away My Statues (parody with a point) https://www.potomacteaparty.com/jefferson-statues.html J. Christian Adams and his Public Interest Legal Foundation have been sued in federal court in connection with their activities to bring the extent of noncitizen voting to light. The League of United Latin American Citizens, better known as LULAC, and four individual plaintiffs filed a complaint earlier this month in federal district court for the Eastern District of Virginia. No answer has been filed yet.
The plaintiffs allege, among other things, that the defendants’ publication of individual names as noncitizens registered to vote amounts to voter intimidation and deters those falsely accused of being noncitizens from actually voting. The plaintiffs further allege that the defendants published still more names after Virginia election officials informed Adams that his methodology was flawed. The 15th Amendment to the U.S. Constitution states that the right of citizens to vote shall not be denied by the United States or any state on account of race. The plaintiffs allege that the defendants violated a post-Civil War era civil rights statute, known as the Ku Klux Klan Act [42 U.S.C. § 1985(3)] directed at preventing anyone from depriving others of their constitutional rights, specifically the right to vote. The other counts in the complaint are based on the Voting Rights Act and defamation. The lawsuit was written up in Mother Jones and Slate. J. Christian Adams, you may recall, is the Justice Department attorney who quit in protest in 2010 after the Justice Department declined to prosecute the New Black Panther Party for voter intimidation in Philadelphia. Adams was a member of President Trump’s ill-fated voter fraud commission. The Left’s narrative on his activities is that they are part of the Right’s effort to suppress the vote, an effort championed by the bigoted Donald Trump. For his part, J. Christian Adams refers to LULAC as a “George Soros outfit” and maintains all he and his legal foundation did was reprint public records showing that thousands of noncitizens were removed from the voter rolls, including cases where the noncitizens had actually voted. Adams wrote in a mailing available on the web:
Separately this week, Kansas Secretary of State Kris Kobach was held in contempt for failing to comply with a court order requiring him to register voters who had not presented proof of citizenship, after the state’s proof-of-citizenship law was blocked by a federal court. The Kobach contempt citation and the lawsuit against J. Christian Adams are not happy bits of news, but let’s remember what’s at stake here: noncitizen voting dilutes the votes of legitimate U.S. citizens, devalues the worth of American citizenship, and constitutes an assault, not only on our nation, but on the very idea of national sovereignty itself. The alternative – a global free-for-all with open borders, which really means no borders or nations at all – would not be pretty. Noncitizen voting is worth opposing regardless of how many noncitizens register to vote or actually cast ballots, because the issue is a gateway to the diminution of national sovereignty and other mischief the Left is trying to bring about. If the destructive nihilistic Left is FOR noncitizen voting, I’m against it. I’m all for people voting, but only if they meet the qualifications. Reverse Nullification: San Diego County joins 12 other California jurisdictions in supporting Trump admin lawsuit against ‘sanctuary state’ laws.
http://freebeacon.com/issues/san-diego-county-joins-californias-sanctuary-state-revolt/?utm_source=Freedom+Mail&utm_campaign=7719639600-EMAIL_CAMPAIGN_2018_04_17&utm_medium=email&utm_term=0_b5e6e0e9ea-7719639600-45628225 “Balanced-Budget Constitutional Amendment Proposal Fails in House” https://www.bloomberg.com/news/articles/2018-04-12/balanced-budget-constitutional-amendment-proposal-fails-in-house 14A: federal judge issues first ruling transgender people entitled to highest protection against discrimination (suspect class / strict scrutiny); ruling comes in military case, likely to be appealed https://constitutioncenter.org/blog/constitutional-milestone-on-transgender-rights 5A Due Process: Supreme Court strikes federal statute easing deportation of violent criminal aliens as unconstitutionally vague (but what’s vague about a list of specific crimes?) http://www.businessinsider.com/gorsuch-supreme-court-votes-immigration-case-2018-4 Supremacy Clause: California plans to block federal government transporting oil & gas through existing pipelines http://dailycaller.com/2018/02/07/california-will-block-oil-coal-shipments/ 10A: Did Trump deal with Sen. Gardner pave the way for the elimination of federal pot law enforcement in states that legalized marijuana? http://reason.com/volokh/2018/04/13/a-possible-victory-for-federalism-and-ma 1A: Student journalists sue U of Illinois for getting restraining order prohibiting them from reporting on anti-Trump rally https://www.dailysignal.com/2018/04/13/3-student-journalists-sue-university-for-covering-up-teachers-role-in-anti-trump-rally/?utm_source=TDS_Email&utm_medium=email&utm_campaign=MorningBell%22%22&mkt_tok=eyJpIjoiWkRBNU9HVmpZbVptWXpBMCIsInQiOiJnV080ZXdKMFBDYUxOV1l2QmtPK0J6MVd4NmpnK0J6SDhPdmFVMldTb3FaXC94Zkg2OFEyc2RmMmFJMFwveFdWcnJHcklSVGtqVG90MERQVTVQQkhlQXZMeWhxeGlwaU9KdExcL1ZNZytTWGs3cVhvNEVXXC80M21jNlgyaW5yeHZTUmcifQ%3D%3D 1A / Parental Rights: Arizona decision rejects court's assignment of treating therapist and gag order that limited parents' discussions with gender dysphoric child. http://reason.com/volokh/2018/04/07/free-speech-rights-parental-rights-and-c 1A: St. Louis rejects no-speech buffer zone outside abortion clinics: “You can’t pick and choose who can protest. It’s the First Amendment for everyone” http://www.lifenews.com/2018/04/17/st-louis-defeats-measure-to-take-away-free-speech-rights-of-people-who-pray-outside-abortion-clinics/ 1A Religion: 6th Circuit slams arrogant Labor Department for requiring church restaurant to pay volunteers minimum wage; “The Department should tend to what is Caesar’s, and leave the rest alone.” http://www.powerlineblog.com/archives/2018/04/court-shoots-down-acosta-dols-attack-on-religious-freedom.php?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+powerlineblog%2Flivefeed+%28Power+Line%29 1A Religion: Jefferson would not have agreed with ‘separation of church and state’ decisions made in his name https://www.dailysignal.com/2018/04/12/why-the-left-is-wrong-about-jeffersons-wall-of-separation-between-church-and-state/?utm_source=TDS_Email&utm_medium=email&utm_campaign=MorningBell%22&mkt_tok=eyJpIjoiTlRBeU1tWmtZekEzTmpsbSIsInQiOiJqVHgyM25COHdqQWRpNlVUdEhSd0FYNk9SVVwvSE1IS3Boc3VGaGdFQThBOUc3S21sUURWZnBZVG1DVXpmdCsyMUU5STA3S0NNMUlyd1dUYVdsWFJRZU1vZ3pSMTdtT2hPSnRMRTdXcjdXNjAxYWQxNTBINFMwRXppOUhCY3MrZGcifQ%3D%3D 2A: Massachusetts high court - stun guns are “arms” protected under Second Amendment even though didn’t exist when 2A written; may be regulated but not banned http://reason.com/volokh/2018/04/17/massachusetts-high-court-strikes-down-st 2A: Illinois town’s ‘assault weapons’ ban draws lawsuit, probably unconstitutional http://thehill.com/opinion/civil-rights/382008-illinois-towns-assault-weapon-ban-is-fear-mongering-unconstitutional + http://freebeacon.com/issues/gun-rights-groups-file-several-lawsuits-illinois-town-new-gun-ban/?utm_source=Freedom+Mail&utm_campaign=6c99cc91fe-EMAIL_CAMPAIGN_2018_04_13&utm_medium=email&utm_term=0_b5e6e0e9ea-6c99cc91fe-45628225 2A: failure of gun control has London mayor pushing for ‘knife control’ (after knife control will come ice pick control, then brick control, then .....) https://www.dailysignal.com/2018/04/12/london-mayor-imposes-knife-control-because-gun-control-hasnt-worked/?utm_source=TDS_Email&utm_medium=email&utm_campaign=MorningBell%22&mkt_tok=eyJpIjoiTnpVMFlqSmlZamswWkdVNSIsInQiOiJGZUxVQ0JDVktVM3hiT1RQbVFQUjRlejhvRmY5NnZPNW84RlRIWGlyMnZsM2V2QWcwTkJ6dnY3UFN3UGxcLzUxZlQzNlM2bXYzZ3BxWHhxeEhJRmVvTDJhYkVZSW5ic2x0VUs4SEJqbnZTRTRZRmdvakl5eUFtRnU4am5GS0RmbTIifQ%3D%3D 4A: “Judgeless Administrative Searches Endanger Speech And Other Rights Shielded By The Fourth Amendment” http://dailycaller.com/2018/04/13/judgeless-administrative-searches-endanger-speech-and-other-rights-shielded-by-fourth-amendment/ 4A, 5A: police can get warrants to unlock phones (decryption), but cases also raise self-incrimination and Miranda issues. http://reason.com/volokh/2018/04/09/in-decryption-cases-dont-forget-the-four + http://reason.com/volokh/2018/04/09/two-new-cases-on-accessing-encrypted-dev 14A: Obama-era letter guidance on school discipline offends Equal Protection principles which hold that mere disparate impact is not enough; boys punished more often than girls and whites more often than Asians – so what? http://reason.com/volokh/2018/04/17/school-discipline-dont-make-a-federal-ca 14A: American Samoans file suit against being only U.S. territory whose residents are not U.S. citizens http://www.latimes.com/nation/la-na-american-samoan-citizenship-explainer-20180406-story.html Article V convention would jeopardize Bill of Rights as factions pursue own constitutional agendas https://www.washingtontimes.com/news/2018/apr/4/letters-to-the-editor-stick-with-amendments/ “Podcast: William Howard Taft and the Constitution” (Taft sought to reverse Teddy Roosevelt’s notion that Prez can do anything Constitution doesn’t forbid) https://constitutioncenter.org/blog/podcast-william-howard-taft-and-the-constitution 2A puzzle: “A well-educated population, being necessary to the productivity of a free state, the right of the people to read and write, shall not be infringed.” Therefore, you may possess a pen only if you use it to serve the state. http://blog.olegvolk.net/2018/04/01/amendment-two-a-legal-immigrants-cautionary-tale-by-anonymous/ One of the worst Supreme Court decisions ever is now the subject of a major motion picture. Little Pink House opens in theaters around the country on April 20th. It tells the true story of Susette Kelo and her neighbors whose houses were taken by the City of New London, Connecticut for the benefit of a private developer. The redevelopment was supposed to include a research facility for the giant pharmaceutical company Pfizer, but nothing was ever built after the houses were demolished. Today, there’s nothing but weeds where a neighborhood once stood.
The power of eminent domain is contained in the Fifth Amendment of the U.S. Constitution. The Takings Clause says private property shall not be taken for public use without paying just compensation. This applies to state and local governments through the Due Process clause of the 14th Amendment which reads, in part, no person shall be deprived of property without due process of law. No one denies that the government can take private property for public use, as long as it pays just compensation. The typical example is taking private property to build a road or public library. The 2005 Kelo case, however, expanded on prior Supreme Court precedent that puffed up ‘public use’ so that eminent domain could apply in many more instances. Through judicial alchemy, the words ‘public use’ in the Constitution now read ‘public benefit’. Under the Supreme Court’s loose interpretation of Constitutional language, New London, Connecticut could take an entire neighborhood and give it to a private developer in the hopes that, some day, the property would generate economic development and a bigger tax base. According to the Supreme Court, a public use is no longer required, as long as the public might benefit in some way. The Kelo case was not an isolated incident. Kelo-type reasoning led to more than 10,000 forced transfers of property, or threats of transfer, from one private owner to another private owner in the five-year period from 1998 to 2002. There was a nationwide backlash against the Kelo decision. More than 40 states enacted some form of protection against the use of eminent domain for private gain. In my own state of Virginia, the state constitution was amended in 2012 to prevent the use of eminent domain for private enterprise, job creation, higher tax revenue, or economic development. That amendment was approved by 75 percent of the voters at the ballot box. When’s the last time you saw 75 percent of the electorate line up behind anything? Susette Kelo and her neighbors eventually received an apology from the City of New London, but eminent domain abuse continues to this day. A Korean family built a successful dry cleaning business in East Harlem, New York, but the city wants to take it so a private developer can build an entertainment complex. Property rights are very popular and our side should be using them more often to halt the advance of the political Left. We have fundamental justice on our side and, thankfully, most people – Supreme Court justices notwithstanding - can still see that. Fundamental Rights – alarmists melt under withering questioning from judge in climate change suit
https://www.wsj.com/articles/climate-alarmists-may-inherit-the-wind-1522605526 1A Prior Restraints - Supreme Court declines to hear challenge to injunction against release of more videos showing Planned Parenthood sale of baby parts; case continues in lower court. http://www.lifenews.com/2018/04/03/supreme-court-wont-let-david-daleiden-release-more-videos-exposing-planned-parenthood-selling-body-parts/ Appointments clause could be a way to limit scope of Robert Mueller investigation of TrumpWorld https://lawandcrime.com/opinion/constitution-jeff-sessions-dismiss-robert-mueller-non-campaign-cases/ 10A - Justice Department sues California, arguing new state law an unconstitutional interference with Congress’ right to control sale of federal land. https://www.politico.com/story/2018/04/02/trump-administration-sues-california-over-state-law-on-federal-land-transfers-495648 1A Free Press – state campaign finance laws ensnare vocal citizens and citizen journalists; imagine colonial pamphleteers being required to publish for 12 months before getting press freedom. http://www.themainewire.com/2018/03/maines-campaign-laws-hurt-free-press/ 1A Religion – “Amicus Brief in the Travel Ban 3.0 Case Explains Why the Bill of Rights Restricts Federal Power over Immigration” http://reason.com/volokh/2018/04/02/constitutional-law-scholars-amicus-brief 2A: Self-defense against bad governments is a human right; “never assume that government is essentially good” http://thehill.com/opinion/criminal-justice/375511-the-second-amendment-is-a-human-right-ignorance-toward-it-is 2A: don’t let emotion sweep away your constitutional rights; car accident deaths far more frequent than gun homicides https://www.scpolicycouncil.org/research/individual-liberty/constitution-guns 4A: Supreme Court backs qualified immunity for Arizona police officer in excessive force case; shot woman with knife 4 times https://www.reuters.com/article/us-usa-court-police/supreme-court-backs-arizona-policeman-accused-of-excessive-force-idUSKCN1H9170 5A Property Rights – couple with allergies ordered to grow grass lawn or pay $200,000 fine; will appeal https://pjmedia.com/trending/judge-rules-homeowner-severe-grass-allergy-must-grow-lawn/?utm_source=PJMCoffeeBreak&utm_medium=email&utm_term=April2018 Takings: Seattle law requiring landlords to rent to next qualified applicant on list struck down as a taking under state constitution; unfavorable U.S. Supreme Court Kelo decision side-stepped. http://reason.com/volokh/2018/03/29/court-rules-that-seattle-law-banning-lan ‘Little Pink House’ movie shows how the ill-advised Kelo eminent domain decision destroyed lives and an entire community; in theaters April 20th http://ij.org/press-release/little-pink-house-movie-hits-big-screen-seeks-end-eminent-domain-abuse/ An originalist view of due process and how it may be used to limit discretion of government officials to deprive people of life, liberty, or property http://reason.com/volokh/2018/03/28/no-arbitrary-power-an-originalist-theory Mississippi Senate kills constitutional convention motion https://www.thenewamerican.com/usnews/constitution/item/28627-mississippi-senate-kills-dangerous-con-con-proposal White students demand removal of MLK statue because icon for black supremacist groups. Then I woke up. https://www.amren.com/news/2018/03/students-call-thomas-jefferson-icon-of-white-supremacists/ “Florida Students Walk Out in Support of the Second Amendment, ‘My Rights Don’t End Where Your Feelings Begin’” http://bwcentral.org/2018/04/florida-students-walk-out-in-support-of-the-second-amendment-my-rights-dont-end-where-your-feelings-begin/ |
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