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May 1, 2010 Print

Member Update: Packing the Court with Activist Judges

by Tom Minnery

Dear Friend,

Round Two has begun. And you and I can’t afford to sit this one out!

Last year, President Obama filled his first vacancy to the U.S. Supreme Court with Sonia Sotomayor, who has since voted in lockstep with the Court’s liberal wing.

Now, he has the chance to further solidify the Left-leaning makeup of the Court with his appointment to replace retiring Justice John Paul Stevens.

As I write this, prospective names are being floated in Washington. Although there are one or two “moderate” surprises among those names, most insiders expect that President Obama will cater to the Left and appoint a dyed-in-the-wool activist who will impact cases for decades to come.

If Mr. Obama succeeds in packing the Court with activist judges of his own ideological bent, the results could radically restructure America’s future.

You know what the Supreme Court has already done via Roe v. Wade and other infamous cases. But just imagine how the headlines would read if the president secures a majority on the Court that believes the Constitution is a “living, breathing document”:

  • Marriage overturned: Court orders same-sex unions in all 50 states
  • Court dumps pro-life laws: No limitations on abortion
  • Game changer: Court says sexual orientation trumps religious liberty

I could go on, but you get the idea. And that list of headlines is no exaggeration. In fact, there are already cases in the lower courts that could lead to each of those headlines.

Marriage attacked in the courts . . . and by the Obama Administration

Take the issue of marriage. As you may know, the marriage amendment in California (Prop 8) backed by Focus of the Family® is being challenged right now in federal court in San Francisco. All May 2010 indications are that the judge—who has consistently sided with opponents of Prop 8—will overturn the vote of Californians and re-impose same-sex marriage.

But however the judge rules, the next stop for Prop 8 will be the 9th U.S. Circuit Court of Appeals. You may recognize that court as the most extreme of all of the circuit courts, known for having its decisions overturned by the U.S. Supreme Court more than any other circuit.

Who did President Obama just nominate to the 9th Circuit? Goodwin Liu, a Berkeley law professor who holds alarming views about the Constitution and marriage, among other things. He believes that the Constitution should be interpreted by adapting its broad principles to the conditions faced by each generation, not what was written by our Founding Fathers for all generations. He also strongly implied in a written brief that same-sex marriage is supported by the U.S. Constitution.1

If Liu is confirmed by the Senate, he could be able to vote on Prop 8 when it gets to the 9th Circuit. That could help ensure that the challenge of Prop 8 reaches the U.S. Supreme Court, where President Obama’s next nominee will help decide the fate of marriage.

But President Obama’s nomination of Liu shouldn’t be shocking, considering what the President’s own administration, along with Congress, has done to undermine marriage in the past several weeks:

  • The U.S. Census Bureau instructed same-sex couples to report themselves as married if they feel they are married—even in the 30 states that have constitutional amendments protecting marriage as the union of a man and a woman.2
  • The House Committee on Standards of Official Conduct drafted—and then retracted—forms that recognize same-sex couples as “spouses” for the purpose of completing financial disclosure paperwork for elected officials and senior congressional staffers.3
  • The president ordered the Department of Health and Human Services to further investigate and recommend actions regarding “hospital visitation, medical decision-making, or other health care issues”—specifically for homosexual, bisexual or transgender individuals, but notably excluding other non-married persons.4

Each of these moves is a step toward repealing the 1996 Defense of Marriage Act, the law that protects marriage as the union of a man and a woman for all federal purposes—which was passed with strong bipartisan majorities in Congress and was signed into law by President Clinton. And each of them helps set the stage for the ultimate battle: A Supreme Court case on marriage.

Why you and I must do all we can on this Supreme Court nomination Some may point to the Sotomayor confirmation last year and say that contesting another nominee is pointless. But the political climate is far different now than it was then, and many Democrats—especially those who are nearing difficult elections—are anxious to shed their Left-leaning reputations.

Moreover, what is ultimately at stake with the Court is so enormous that you and I simply cannot afford to not raise our voices for the good of marriage . . . life . . . our families . . . and our nation’s future.

Plus, the more that you and I engage on this, the more the American people will awaken to what is happening. And polls show that a strong majority of Americans oppose activist judges and are less likely to support politicians who vote to confirm them.

That’s why Focus on the Family Action is preparing to spend significant resources to oppose any nominee to the U.S. Supreme Court who does not adhere to a judicial philosophy of strictly interpreting the Constitution. But we’re preparing those plans on faith that the resources will be there when we need them—which could be any moment now.

So, if you agree with me that we must act strategically and vigorously to counter the president’s Supreme Court agenda, would you take a moment to make a generous contribution right away? By the time you are reading this, the nominee may have already been chosen . . . and we will likely be just days from having to commit resources and jump into action. So your gift now will be a tremendous help.

I trust that you’ll also use this moment to share with friends and family about what is happening and what is at stake. Most of all, please pray for God’s intervention and grace for our nation.

Same mission . . . new name

Lastly, I want to give you a sneak peak at a change that’s long been in the works for Focus Action. After long and careful consideration, we’re changing our name. But it’s a name you’ll recognize: CitizenLink®!

As you know, CitizenLink is the name we use most often on our issues-oriented website (CitizenLink.com) and the
daily news e-mail update. CitizenLink is also the name heard most often when the Focus on the Family® daily radio program addresses policy-oriented issues. Of course, the name is rooted in Focus on the Family Citizen® Magazine—Focus on the Family’s monthly publication that carries Focus Action’s various policy and news features. Thus, the new name will help simplify and streamline communication.

It’s also a strategic move to strengthen the ability of both Focus on the Family and Focus on the Family Action (now CitizenLink) to fulfill their unique yet complementary missions of providing the time-tested guidance on which you’ve come to expect and rely. From Focus on the Family, you’ll continue to receive resources that help your family thrive. And from CitizenLink, you’ll be empowered to make a difference in politics and culture on behalf of life, marriage and the family.

So next month when you get my update, expect to see the new CitizenLink logo . . . but with the same mission and same commitment to respectful, passionate engagement with the issues that impact the family. Thank you so much for making this work possible with your faithful support, committed action and heartfelt prayers.


Tom Minnery
Senior Vice President
Government and Public Policy

P.S. Time is short and the need is great to impact the pending Supreme Court nomination. Please respond with a gift today—or at least by the end of the week—if at all possible. And even if you can’t give, please pray—for our nation and for this critical project. Thank you!

1 http://data.lambdalegal.org/pdf/legal/inre_ca_ba_20070928_supreme_professors-sullivan-and-karlan.pdf
2 “Census Bureau urges same-sex coples to be counted,” USA Today, April 6, 2010, http://www.usatoday.com/news/nation/census/2010-04-05-census-gays_N.htm
3 “Draft Congressional Ethics Rules Would Recognize Gay Marriage,” Roll Call, April 15, 2010, http://www.rollcall.com/news/45204-1.html
4 “Presidential Memorandum – Hospital Visitation,” White House web site, http://www.whitehouse.gov/the-press-office/presidential-memorandum-hospital-visitation