ACRU Amicus Brief Library

ACRU Brief Challenges Health Care Law

The American Civil Rights Union filed an amicus curiae brief on April 4, 2011 in the United States Court of Appeals for the Fourth Circuit in support of Virginia Attorney General Ken Cuccinelli in the case of Commonwealth of Virginia v. Kathleen Sebelius seeking to strike down Obamacare as unconstitutional. The brief argued that Obamacare's individual mandate is unconstitutional because the delegated, enumerated power in the Commerce Clause to regulate interstate commerce does not include compelling purchase of government designated health insurance. The brief also argued that all of Obamacare should be struck down as unconstitutional as a result, because the Obamacare law did not include a severability clause. The Heartland Institute recently published a book length study by ACRU General Counsel Peter Ferrara, who authored the brief, entitled The Obamacare Disaster: An Appraisal of the Patient Protection and Affordable Care Act.

Download the brief here


ACRU Files Amicus Brief Against EPA's Unconstitutional Stoppage of Home Construction

Petitioners Chantell and Michael Sackett purchased a residential lot in a residential neighborhood, zoned and permitted by local authorities for construction of their home. After they began earthwork prepatory to such construction, they received a Compliance Order from the EPA effectively ruling that moving around dry earth and fill materials on their residential lot to begin their homebuilding project somehow involved discharge of a pollutant into the navigable waters of the United States in violation of the Clean Water Act. The Sacketts were denied any hearing to contest the Compliance Order by the EPA and by federal courts. They sought a Writ of Certiorari on the grounds that without any such hearing they were denied Due Process of Law. The ACRU filed an amicus brief in their support on April 28, 2011, arguing that Certiorari should be granted on these grounds, and also because the EPA's action involved an unconstitutional regulatory Taking as well.

Download the brief here


California Court Rules Against Cross Memorial

Ninth's Decision on Mt. Soledad Veterans Cross "Defies Common Sense," ACRU Says

A three-judge panel of the Ninth Circuit Court of Appeals has ruled that the 57-year-old concrete cross atop the Mt. Soledad Veterans Memorial in San Diego is unconstitutional. The decision runs counter to a recent U.S. Supreme Court ruling in a similar case at the Mojave National Preserve veterans memorial.

"This decision appears to be rooted more in a desire to rid the public square of prominent reminders of America's religious heritage than it does in a desire to protect the sensibilities of people who happen to see the cross. It distorts the Constitution's First Amendment, ignores recent court precedents, and defies common sense," said Susan Carleson, Chairman and CEO of the American Civil Rights Union (ACRU).

The ACRU filed a brief in the case (Jewish War Veterans vs. the City of San Diego) in 2009 in which ACRU General Counsel Peter Ferrara noted that,

With a clear, simple standard rooted in the text of the Constitution and its surrounding history, this case is easily resolved. The cross at the federal Veterans' Memorial atop Mt. Soledad does not involve an unconstitutional establishment of religion because it does not involve coercion of any sort. It just sits there, without any specified message....

Each visitor to the memorial is free to decide what the cross, and the memorial overall, means to them. They can take the cross as an expression of reverence for the nation's veterans, including those who suffered the supreme sacrifice. They can take it as an expression of hope that these lost loved ones will be seen again in some unknown future. They can take it as an expression of some religious message. However each visitor interprets the cross, they are also free to then accept or reject the message that they each discern.

Mrs. Carleson added: "We expect the cross will fare better if the full court or the Supreme Court reviews the decision and rejects this twisted interpretation of the Founders' constitutional intent to secure true religious freedom and civil rights. The ACRU will be ready to file another brief in the expected appeal."

Download the brief here


Court Strikes Down Obamacare

The United States District Court for the Eastern District of Virginia Monday struck down as unconstitutional the individual mandate in President Obama's health care takeover scheme, the Patient Protection and Affordable Care Act. The individual mandate is the provision that all individuals without employer provided health insurance purchase health insurance with all of the benefits and provisions as specified by the federal government.

Federal Judge Henry Hudson ruled that the federal government does not have the power to impose such an individual mandate under any of the enumerated powers of The Constitution. However, even though the legislation does not include a severability clause, which traditionally provides that the legislation would remain in force if any of its constituent components is declared invalid, the Judge nevertheless declined to strike down the entire act.

The ACRU filed an amicus curiae brief in this case supporting the state of Virginia and Attorney General Ken Cuccinelli, who filed suit to strike down the health takeover law. ACRU General Counsel Peter Ferrara said, "I predict that the Supreme Court will uphold this decision, except it will strike down the whole law, because even the government has admitted in this litigation that the Obamacare legislation is unworkable without the individual mandate. The ACRU will be filing briefs making this point throughout the appeal process."

Download the brief here


The American Civil Rights Union Files Amicus Brief to Strike Down Obamacare

The American Civil Rights Union filed an amicus curiae brief on November 19 in the Federal District Court in the Northern District of Florida in the case of State of Florida, et al. v. U.S. Dept. of Health and Human Services supporting 20 states who have joined in that lawsuit seeking to strike down Obamacare as unconstitutional. The brief argued that the delegated, enumerated power in the Commerce Clause to regulate interstate commerce does not include compelling participation in interstate commerce by requiring purchase of government designated products and services by those who otherwise choose not to do so. The brief also uniquely argued that there were other, constitutional means that Congress could have used to ensure health coverage for the uninsured. The Heartland Institute recently published a book length study by ACRU General Counsel Peter Ferrara, who authored the brief, entitled The Obamacare Disaster: An Appraisal of the Patient Protection and Affordable Care Act.

Download the brief here.


ACRU Seeks to Strike Down Obamacare

The American Civil Rights Union filed an amicus curiae brief on October 4, 2010 in the Eastern District of Virginia in support of Virginia Attorney General Ken Cuccinelli in the case of Commonwealth of Virginia v. Kathleen Sebelius seeking to strike down Obamacare as unconstitutional. The brief argued that the delegated, enumerated power in the Commerce Clause to regulate interstate commerce does not include compelling participation in interstate commerce by requiring purchase of government designated products and services by those who otherwise choose not to do so. It also argued that the individual mandate is not a tax under the federal government's taxation powers, but a regulatory requirement that individuals purchase required health insurance with the benefits and other coverage provisions specified by the government. The Heartland Institute recently published a book length study by ACRU General Counsel Peter Ferrara, who authored the brief, entitled The Obamacare Disaster: An Appraisal of the Patient Protection and Affordable Care Act.

Download the brief here

Download the suit motion here

Download The Obamacare Disaster study here


ACRU Defends Marriage in California

On September 24, 2010, the American Civil Rights Union filed a amicus brief defending marriage in the appeal of the same-sex marriage case Perry v. Schwarzenegger. The people of California voted to amend the California Constitution to define marriage as the union of a man and woman, ensuring that California would hold to the same concept of marriage as it has always existed in America and through all of human history worldwide. In August 2010, a federal district court in San Francisco declared that the U.S. Constitution contained a previously-undetected right to same-sex marriage, and struck down this part of the California Constitution, ordering that same-sex marriages be performed immediately in California. The U.S. Court of Appeals for the Ninth Circuit issued a stay of the district court's ruling, and is now considering an appeal of the Perry case.

The ACRU brief focuses on why Supreme Court precedent requires that all fundamental rights in the U.S. Constitution be deeply rooted in American history and tradition to be considered essential to an American scheme of liberty. As the district judge in Perry held that there is a fundamental right to same-sex marriage, the ACRU brief assists the supporters of traditional marriage by amplifying upon this aspect of the legal argument in the case to prove to the appeals court why the district court decision is incorrect as a matter of constitutional law. Although the courts have recognized for decades an implied right to marry, the ACRU amicus brief explains to the Ninth Circuit why that right applies only to the joining of one man and one woman.

Download the brief here.


Recalling Senator Kent Conrad: Tea Party Activists in North Dakota Fight Denial of Recall Effort

On August 30, the American Civil Rights Union (ACRU) filed an amicus brief in support of Tea Party activists arguing that North Dakota law does provide for recall of U.S. Senators. Tea Party activists had previously filed with the Secretary of State for approval of petitions for the recall of Senator Kent Conrad. They were denied by the Secretary of State citing
an opinion from the state Attorney General that the North Dakota Constitution did not provide for the recall of U.S. Senators. However, the state Constitution expressly states that recall applies to "all elected officials of the state."

The Recall Committee sued the Secretary of State seeking enforcement of the law, filing in the state Supreme Court which has original jurisdiction as provided in the state Constitution. The Supreme Court issued an Order providing for a briefing schedule and oral argument in October.

The legality of recall of U.S. Senators is now before 2 state Supreme Courts, New Jersey, where a ruling is still awaited on briefs and oral argument submitted in May, and now North Dakota. A New Jersey state appellate court has ruled that the recall of New Jersey Senator Robert Menendez can go forward.

Download the brief here.


ACRU Joins Effort to Protect Prayer

A federal judge in Wisconsin held in April that the National Day of Prayer is unconstitutional as a violation of the First Amendment Establishment Clause. On July 7, ACRU joined a brief coauthored by ACRU Fellow and Senior Legal Analyst Ken Klukowski that makes the case as to how and why a National Day of Prayer is perfectly acceptable to the First Amendment of the U.S. Constitution. Moreover, though, the brief makes the case as to why this lawsuit should just be dismissed without even considering the constitutional challenge, because the plaintiffs, the Freedom From Religion Foundation and several affiliated individuals, lack standing to bring this suit in federal court.

Download the brief here.


ACRU Files Brief Urging N.J. Supreme Court to Allow Menendez Recall Petitions

On May 10, 2010, the American Civil Rights Union filed a brief with the New Jersey Supreme Court urging the justices to affirm a state appellate court ruling ordering the Secretary of State to recognize a recall notice for U.S. Sen. Robert Menendez (D). If the court concurs, petitioners could begin immediately to collect the 1.3 million signatures needed within 320 days to put Menendez on the ballot. Menendez, who was elected in 2006, is not slated for re-election until 2012.

The brief, filed by ACRU General Counsel Peter Ferrara, makes it clear that the court is deciding only the validity of a lower court's ruling that signature gathering is legal, not the constitutionality of the recall measure itself.

For more on the recall process, see www.recallcongressnow.org.

Download the brief here.


Salazar v. Buono

The ACRU is happy to report that an important stride was taken today, April 28, 2010, in defense of the 1st Amendment, the U.S. Supreme Court ruled 5-4 in favor of protecting an historic veteran's memorial cross in the Mojave Desert that had been challenged by the ACLU. The Veterans of Foreign Wars erected the memorial cross in the Mojave National Preserve in 1934. A former preserve employee and visitor, Frank Buono, claimed that the cross violated the First Amendment. Rather than remove the cross, Congress and the Interior Department transferred the land to the VFW. Buono, backed by the ACLU and the Ninth Circuit Court of Appeals, continued to insist on the removal of the cross.

The ACRU argued in a June 8, 2009 amicus brief that Mr. Buono lacked standing to claim an injury on account of the cross. In today's ruling in Salazar v. Buono, the Court upheld the land transfer as constitutional.

Salazar v. Buono is the latest case arising from the battle of militant atheists against people of faith. In the Mojave Desert National Preserve there is a memorial in the form of a cross dedicated to World War I soldiers. The plaintiff, Buono, brought suit with the backing and legal support of the ACLU to have the cross removed, arguing that having a cross on public land was unconstitutional. After years of litigation, the federal government took the extraordinary step of passing a law that would allow the Veterans of Foreign Wars (VFW) to take the plot of land with the cross, in exchange for the VFW donating land of equal value to the National Park Service. Committed to seeing the cross removed, Buono obtained a court order to prevent the land exchange from being completed. The Ninth Circuit federal appeals court affirmed this order. The Supreme Court has taken the case to determine if the plaintiff even has legal standing to continue this case. On June 8, 2009, the ACRU filed an amicus brief in favor of the preserving the cross.

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ACRU Urges NJ Supreme Court to Deny Sen. Menedez Petition to Hear Recall Appeal

Senator Robert Menendez (D-NJ) petitioned the New Jersey Supreme Court to hear his appeal from the ruling of a state appellate court that a citizens committee seeking a recall election to remove him from office could proceed to circulate petitions to collect the signatures required under the New Jersey Constitution to qualify for such an election.

The American Civil Rights Union (ACRU) filed an amicus curiae brief on April 21, 2010 with the New Jersey Supreme Court urging it to deny the petition from Senator Menendez to hear the case on the grounds that the circulation of petitions and the collection of signatures is political activity and political expression protected by the First Amendment which consequently should be allowed to proceed.

Download the Brief here.


Loar et al v Michigan Department of Human Services

On April 12, 2010, the ACRU filed an amicus brief requesting the Michigan Supreme Court to hear the case of Loar et al v Michigan Department of Human Services. This case presents critical questions regarding institutionalized misappropriation and diversion of public funds, and forced unionization as state employees of self-employed, privately owned and operated, home based, independent contractors serving the general public.

Under a state program to assist low income mothers in working and thereby reducing the burden of public assistance on taxpayers, the Michigan Department of Human Services (DHS) is authorized under state law to pay these independent providers for child care services to qualifying low income mothers. AFSCME and the UAW formed a union, Child Care Providers Together Michigan (CCPTM), which was certified as the collective bargaining unit for the self-employed, home-based child care providers by the Michigan Employment Relations Commission (MERC) after a supposed certification election in which only 6,400 out of the 72,000 child care providers voted. The DHS then formed another bureaucracy, the Michigan Home Based Child Care Council (MHBCCC), which entered into a collective bargaining agreement with the CCPTM union as the supposed employer of the self-employed, independent contractor child care providers. Under that agreement, the DHS began diverting dues to the union out of the payments to the child care providers for services rendered to the low income mothers that employed them. Those dues payments totaled almost $4 million for 2009 alone. The child care providers sued to recover these misappropriated funds due to them under state law for services rendered.

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Doe v. Reed

Citizens of Washington state obtained the necessary petition signatures for a referendum on the state's domestic partnership law which extended the state's marriage law to same sex couples. Gay rights groups sought public release of the petitions, openly stating their intention to post the names, addresses, phone numbers, and employers of the signers on the Internet, and encouraging gay rights advocates to have "uncomfortable conversations" with them. In California, this resulted in death threats, hate mail, vandalism, and violence against the petition signers, including protests that caused some to lose their jobs. Protect Marriage Washington obtained an injunction against release of the petitions, but the Ninth Circuit reversed. On the appeal to the United States Supreme Court, on March 4, 2010, the ACRU filed a brief arguing for an injunction to protect the right of petition signers to free speech and political participation without harassment, intimidation, and violence.

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COMMITTEE TO RECALL ROBERT MENENDEZ v. NINA WELLS, SECRETARY OF STATE, ET AL.

February 9, the American Civil Rights Union filed an amicus brief in support of a grassroots citizens effort to petition for recall of Sen. Robert Menendez (D-NJ).

The Sussex County Tea Party and NJ Tea Parties United, which filed the original petition request to gather signatures as The Committee to Recall Senator Robert Menendez from the United States Senate, contend that Menendez has violated his oath of office by voting for unconstitutional measures such as the attempted government health care takeover bill.

The New Jersey Secretary of State at the time rebuffed the request. So the matter is in court. Menendez is up for re-election in 2012. A successful recall petition drive could put him on the ballot this November.

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McDonald v. City of Chicago

The case McDonald v. City of Chicago presents to the Supreme Court the issue of whether the Second Amendment right to bear arms is applicable to state and local governments, or instead is only a right that Americans have against the actions of the federal government. Specifically, the question is whether the right to bear arms applies (or is "incorporated") to the states through either the Privileges or Immunities Clause or the Due Process Clause of the Fourteenth Amendment.

On November 23, the ACRU, joined by three other organizations, argued that the Second Amendment should be incorporated to the states through the Privileges or Immunities Clause, and that this should be done without overruling the Slaughter-House Cases. The Privileges or Immunities Clause could be used as a source for judicial activism unlike anything America has ever seen. The best safeguard against that possibility is the Slaughter-House Cases, which severely restricts the scope of that clause to only incorporate rights that are inherent in federal citizenship and that are grounded in the text of the Constitution. Since it is possible to incorporate the right to bear arms through Privileges or Immunities without overruling Slaughter-House, that becomes the safest way to extend this right against the states, while not opening the door to unintended consequences.

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United States v. O'Donnell

Pierce O'Donnell was charged with a criminal violation of federal campaign finance laws. The District Court granted his motion to dismiss most of the Indictment on the grounds that his conduct was not prohibited by the plain language of the statute under which he was charged. The Justice Department appealed to the 9th Circuit supported by several amici arguing that the statute should nevertheless be held to prohibit his conduct based on public policy arguments. On November 16, the ACRU filed a brief amicus curiae in support of O'Donnell arguing that stretching criminal statutes beyond their plain terms to railroad defendants into prison terms based on policy arguments would violate the basic rule of law and threaten the basic liberty of American citizens, as in authoritarian regimes.


Stop the Beach Renourishment, Inc v. Florida Department of Environmental Protection

In this case, the homeowner petitioners owned oceanfront property with private beaches. State and local entities in Florida conducted a beach nourishment project on their properties which involved adding tons of sand at the waterline. As part of this project, the government unilaterally redefined their property lines away from the water and added a 75 foot public beach at the waterline. As a result, they lost all of the littoral property rights which belong to those who own property at the waterline. The homeowners sued arguing that the beach nourishment project involved an unconstitutional taking of property rights without compensation in violation of the Fifth Amendment's Takings Clause. On August 20, the ACRU filed this brief in the Supreme Court in support of the homeowners.

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Free Enterprise Fund v. Public Company Accounting Oversight Board

Congress created the Public Company Accounting Oversight Board (PCAOB) to enforce the Sarbanes Oxley law. But Congress provided for the Securities and Exchange Commission (SEC), not the President, to appoint the members of the PCAOB. The President also has no powers of oversight or removal regarding the board members. Yet the PCAOB has the power to establish standards of criminal misconduct, and to decide on their prosecution and punishment. It also has the power to impose taxes on publicly traded companies, and to set its own budget, again independent of the President.

The Free Enterprise Fund brought suit challenging the constitutionality of this arrangement, arguing that it violated the Separation of Powers Doctrine and the Appointments Clause that requires top Executive Branch officials to be appointed by the President and confirmed by the Senate. The Supreme Court granted a Writ of Certiorari to hear the case, with the ACRU filing a brief urging that action. On August 3rd, the ACRU then filed this brief on the merits urging the Court to strike down the PCAOB and the Sarbanes Oxley law as unconstitutional on these grounds.

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Citizens United v. FEC

The American Civil Rights Union filed an amicus curiae brief on July 31 with the United States Supreme Court in the case of Citizens United v. Federal Elections Commission, urging the Court to overrule Austin v. Michigan Chamber of Commerce, and the relevant portions of McConnell v. FEC, which upheld the McCain-Feingold campaign finance law. Citizens United involves a feature length, documentary film produced in 2007 by Citizens United, an ideological conservative non-profit, named Hillary: The Movie. Because the movie was about a candidate for President, the Federal Elections Commission ruled that it was subject to federal campaign finance laws. Consequently, the movie was prohibited from screening or broadcast during the 2008 election season while Hillary Clinton was still a candidate. The ACRU previously filed a brief in this case urging the Court to grant a Writ of Certiorari to hear it, and then filed a brief supporting Citizens United on the merits after certiorari was granted. But the Supreme Court asked for supplemental briefs addressing the issue of whether Austin and the relevant portions of McConnell should be overruled. In response, the ACRU filed its third brief before the Supreme Court supporting Citizens United.

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NRA v. City of Chicago and Village of Oak Park

Last year's watershed Second Amendment case of District of Columbia v. Heller was just the beginning of the fight over the meaning of the right to keep and bear arms. The most significant question now is whether the Second Amendment only applies to the federal government (because D.C. is directly under federal law) or whether it also applies to states and cities under the Fourteenth Amendment of the Constitution. This question of whether the Second Amendment is "incorporated" by the Fourteenth Amendment is now being offered to the Supreme Court. The city of Chicago has a law banning handguns similar to the law struck down last year in Heller. The NRA filed suit against this law, and lost both in the federal district court and also before the Seventh Circuit. Now the NRA has petitioned for certiorari, requesting the Supreme Court to decide the matter. On July 6, the ACRU filed an amicus brief supporting the NRA's petition. The Court should decide by early October whether to take the case. If granted certiorari, NRA v. Chicago will be a historic case and important as the Heller decision itself.

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Boy Scouts of America v. Barnes-Wallace

The City of San Diego has long leased two properties to the San Diego unit of the Boy Scouts of America in return for the construction, operation and maintenance of youth recreational facilities. The Scouts have spent millions on the two properties over the years, providing first class recreation operations open to the public on a first-come, first-served basis. Many, many thousands who are not Boy Scouts use these facilities every year. Nevertheless, a lesbian couple with a male child and an agnostic couple with a male child sued the City and the Boy Scouts over the arrangement. The Plaintiffs allege they are "offended" by the traditional moral values espoused by the Boy Scouts, which they find "repulsive," and claim they cannot use the facilities because of the "offensiveness of having to deal with the Boy Scouts" administering the facilities (that the Scouts paid for and built themselves). In other words, the two families argue they are suffering an unconstitutional injury because they feel they must avoid a place because of people there who hold different views. The Scouts have now asked the U.S. Supreme Court to review whether the Plaintiffs have standing under the law to even bring this suit in the first place. On May 4, 2009, the ACRU filed an amicus curaie brief with the Court supporting the Scouts, arguing that under the law merely being offended by the views of others is not sufficient for standing, which requires a concrete injury-in-fact.

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Jewish War Veterans of the United States of America, Inc., Steve Trunk, et al. v. City of San Diego, et al.

The 29 foot high Latin cross atop Mt. Soledad in the San Diego suburbs has been under attack by the ACLU for 21 years now. But the cross still stands. The ACRU has joined in defense of the cross for the last 11 years. In 2005, the Congress took the cross and the land surrounding it by eminent domain, and registered it as an official federal veterans' memorial. The ACLU sued again claiming that crosses even on federal veterans memorials are unconstitutional establishments of religion. The district court dismissed the suit, which has now been appealed to the 9th Circuit. On March 20, 2009, the ACRU filed a brief in this appeal in support of the cross, arguing that the text and the history of the Establishment Clause show that it only forbids government policies, practices or actions that involve coercion. Since the cross at the memorial does not involve any form of coercion, it is not unconstitutional.

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Ricci v. DeStefano

On February 26, the ACRU filed an amicus brief with the United States Supreme Court arguing that the Court should reverse the decisions below and hold that New Haven discriminated against Petitioners solely because of their race.

In 2003 the city of New Haven conducted a job-related, race-neutral promotion examination for firefighters, and then refused to promote the firefighters who ranked on top because they were all white or hispanic. The decision to not promote the firefighters was reached after an African-American political ally of the mayor threatened to sue under Title VII. The ACRU is arguing that the city of New Haven is engaging in intentional discrimination by refusing to promote Petitioners in order to avoid a potential lawsuit for unintentional discrimination, in violation of the Fourteenth Amendment's Equal Protection Clause.

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Free Enterprise Fund v. Public Company Accounting Oversight Board

On February 9, 2009, the ACRU filed an amicus brief with the United States Supreme Court arguing that the Court should review the decisions of the courts below upholding this arrangement.

In response to the scandals at Enron and elsewhere, Congress passed the Sarbanes Oxley Act in 2002, imposing costly, unnecessary regulatory burdens on business. The Act also created the Public Company Accounting Oversight Board to oversee and regulate accounting practices, and enforce its regulations through even criminal penalties. The PCAOB even has the power to finance itself through its own tax. But the President has no appointment, removal, supervisory or oversight authority over the PCAOB, with limited oversight granted only to the Securities and Exchange Commission, itself an independent agency from Presidential authority. This case involves a suit arguing that this arrangement is an unconstitutional violation of the Separation of Powers Doctrine, involving an invasion of the President's executive powers granted in the Constitution by Congress.

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Citizen's United v. Federal Elections Commission

On January 14, 2009, the American Civil Rights Union filed an amicus curiae brief with the United States Supreme Court in favor of Citizens United v. Federal Elections Commission, arguing that prohibiting broadcast of the movie "Hillary: The Movie" violated the fundamental right of freedom of speech, not only for Citizens United and the individuals who contributed to produce the movie to advance their ideological viewpoint, but also for the viewers who would choose to watch the movie. The ACRU brief argues that these viewers "hold their own constitutionally protected, freedom of speech rights to watch and to listen to the movie and its speech."

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Citizens United V. Federal Elections Commission

On September 16, 2008, the American Civil Rights Union filed an amicus curiae brief with the United States Supreme Court urging the Court to take on appeal the case of Citizens United v. Federal Elections Commission. This case involves a feature length, documentary film produced by Citizens United named Hillary: The Movie. Because the movie was about a candidate for President, the Federal Elections Commission ruled that it was subject to federal campaign finance laws. Consequently, the movie was prohibited from screening or broadcast during the 2008 election season while Hillary Clinton was still a candidate. The ACRU argued in its brief that this was a gross violation of Freedom of Speech under the First Amendment, and that the Supreme Court urgently needed to take the case to protect that freedom so critical and fundamental to our democracy.

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Religous Freedom Case Heard in California

On May 27th, the California Supreme Court heard a case which could have a drastic effect on religious freedom in that state.

From the San Diego Union Tribune:

The issue is whether fertility physicians at North Coast Women's Care in Vista discriminated against a lesbian couple from Oceanside when they cited religious beliefs in refusing to perform artificial insemination....

...That group says this is a "potentially landmark, historic case" that will decide the scope of religious freedom in the state constitution.

The ACRU filed an amicus brief on this case, arguing that a doctor has the right to refuse to perform a procedure on someone whose lifestyle goes against their religious beliefs.


In Re Rachel, L.

The ACRU joins other organizations supporting homeschooling to file this brief in a California state appellate court arguing for a constitutional right for parents to choose homeschooling for their children. The argument is based on Freedom of Religion and Freedom of Speech, relying in particular on precedents holding that parents have a constitutional right to choose private rather than public schools for their children, and that Amish parents can choose the alternative of working at home within the Amish culture rather than attending public high schools.

On August 8, 2008 the Second Appellate District in a 3-0 decision, ruled that homeschooling is a legitimate form of education. A lower court had ruled home education is not permissible if a parent does not posses teaching credentials from the state.

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Heller v. DC

Gun control laws in the District of Columbia effectively ban the use of handguns, or other guns, for self-defense within the home. Heller is a Federal security guard charged with helping to protect the Federal judiciary at the Federal Judicial Center in Washington DC. In that capacity, he is armed with a handgun for his work during the day. Heller wants to keep a handgun within his home in Washington DC for self-defense during the evening. He applied for a permit for such a gun but was denied, as required under DC law since 1976. He sued the city claiming that the DC gun control laws effectively denied his right to keep and bear arms within the home for self-defense under the Second Amendment, and, therefore, were unconstitutional.

The District Court ruled that the Second Amendment did not provide for an individual right to keep and bear arms. But in an historic precedent, the DC Circuit Court of Appeals reversed, finding that the Amendment did, indeed, provide for such an individual right. The Court consequently struck down the DC gun control statutes as unconstitutional.

We have filed amicus briefs at every stage of this litigation, going all the way back to the District Court. In 2007, we first filed an amicus brief in the Supreme Court supporting Heller's request for a writ of certiorari for a definitive ruling on the issues. The Court did grant certiorari.

On June 26, 2008 the Supreme Court ruled that the Second Amendment protects an individual right to have a gun, at least in one's home. The Court, splitting 5-4, struck down a District of Columbia ban on handgun possession.

Heller v. DC
Read the Brief

Parker v. DC
Read the Supreme Court Brief
Read the DC Circuit Brief


Indiana Voting Rights

In 2005, the Indiana General Assembly passed legislation, signed by the Governor, to counter voter fraud by generally requiring those voting in person at the polls to identify themselves with a government issued photo ID, such as a driver's license or a passport. The Indiana state Democratic Party, the Marion County Democratic Party, two elected Democrat officials, and several political interest groups filed suit alleging that this Indiana Voter ID law is unconstitutional because requiring such an ID imposes a severe burden on the right to vote.

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Rederford & Christy v. Hicks

This case presents increasingly urgent questions of law regarding the free speech rights of politically disfavored local minorities. The facts of this case reveal discriminatory prejudice against Christian employees by the City of Oakland reflected in viewpoint discrimination regarding their freedom of speech.

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Benitez v. North Coast

On March 29, 2007, ACRU filed a brief in the California Supreme Court on behalf of the defendant, North Coast Womens' Care Medical Group. This case tests the Freedom of Religion Clause of the California Constitution on the issue of whether a physician has a constitutional right to refuse on religious grounds to perform a medical procedure for a patient because of the patient's sexual orientation. The trial court found in favor of the plaintiff but the decision was overturned by the Court of Appeal, Fourth Appellate District.

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Barnes-Wallace v. BSA, City of San Diego and BSA Desert Pacific Council

This case involves whether use by the Scouts of Balboa Park and Fiesta Island in San Diego under a long term lease with the city amounts to an unconstitutional establishment of religion. The District Court ruled it did. Oral arguments were heard on the case in February of 2006, before the United States Court of Appeals for the Ninth District, in California. The opinion of the court is pending.
On December 22, 2006 the 9th Circuit Court of Appeals asked the California Supreme Court to decide whether San Diego's leasing of the parkland to the Boy Scouts violates the California state constitution.

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Boy Scouts of America and Connecticut Rivers Council, BSA v. Wyman et al

In this case the Boy Scouts sued because the state of Connecticut excluded them from the combined charitable campaign for state employees on the grounds that the Scouts were a discriminatory organization. ACRU and other groups petitioned the United States Supreme Court to hear this case after the United States Court of Appeals for the Second Circuit decided against the ACRU position. On March 8, 2004, the Supreme Court refused to hear the case.

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Boy Scouts of America and Monmouth Council, BSA v. Dale

Decided by the United States Supreme Court on June 28, 2000, in favor of ACRU’s position. This case involved the landmark ruling by the Supreme Court holding that the Scouts could not be forced to retain openly gay adult scout leaders under antidiscrimination laws. The Scouts have a right of freedom of expressive association to appoint adult leaders who do not contradict the message and doctrines of the Scouts.

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Bush v. Palm Beach County Canvassing Board

Bush v. Gore, concerning the all-important Florida vote for President in 2000, came up on an accelerated basis from the Florida Supreme Court. Only 14 counsel filed briefs in the case. On December 4, 2000, the US Supreme Court unanimously ruled as the ACRU brief, and only that brief, recommended. It struck the Florida Supreme Court decision, requiring that court to rethink and rewrite its decision. When the Florida Supreme Court failed to get the message, the US Supreme Court took the case, and seven Justices ruled that the Florida court had violated the US Constitution.

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Evans v. City of Berkeley

Denial of the Sea Scouts’ right to free berthing of its vessels as accorded other non-profit groups. Decided by California State Supreme Court on March 9, 2006, against ACRU’s position. Plaintiffs and the ACRU petitioned the United States Supreme Court to take the case. On October 16, 2006, the Supreme Court denied the petition to hear the appeal of the California State's Supreme Court decision.
Cover page | Table of Contents | Brief


McConnell v. FEC

McConnell v. FEC concerned the McCain-Feingold Campaign Finance "Reform" Act. The ACRU filed a brief arguing that restrictions on citizen advertising before primary and general elections were a gross and facial violation of the First Amendment. On DATE, the US Supreme Court upheld those restrictions in a bitterly divided, 5-4 decision, rejecting the ACRU position.

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Paulson v. City of San Diego

ACRU filed a brief in support of the City of San Diego in California state appellate court on appeal from a state judge’s order prohibiting the City from transferring the Mt. Soledad Memorial and its cross to the Federal government, as approved in a city referendum with 76% in support. The Federal government intervened to safeguard the monument by its powers of eminent domain; plaintiff Paulson is recently deceased. ACLU may file another suit challenging the Federal action.

On January 12, 2007, the 9th Circuit Court of Appeals dismissed the lawsuit to remove the memorial as moot and said a district court order to remove the cross must be vacated.

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Paulson v. City of San Diego

ACRU filed a Petition for Writ of Certiorari in the U.S. Supreme Court on behalf of the private association which had bought the Mt. Soledad property in the sale invalidated by the Ninth circuit. But the Supreme Court denied the petition because the Ninth Circuit had invalidated the sale based on the California state constitution.

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Paulson v. City of San Diego

ACRU filed a brief in support of the City of San Diego in the U.S. Court of Appeals for the Ninth Circuit on an appeal by Paulson from a Federal judge’s order approving the sale of the Mt. Soledad property including the cross to a private association. The three judge Ninth Circuit panel affirmed the sale as valid, as the ACRU brief urged. But Plaintiff won a rehearing en banc by the entire 9th circuit which reversed and invalidated the sale on the grounds that it amounted to an unconstitutional establishment of religion under the California constitution.

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Rumsfeld vs. Forum for Academic and Institutional Rights

Decided by the United States Supreme Court on March 6, 2006, in favor of ACRU’s position. In this case the Supreme Court held that the Federal government has the power to condition Federal educational aid on maintenance of equal access to the campus for military recruiters as compared to other recruiters.

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United States of America v. American Library Association

Decided by the U.S. Supreme Court on January 23, 2003, in favor of ACRU’s position.

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Winkler v. Rumsfeld

This case involves whether use by the Scouts of a military base for their national Jamboree involves an unconstitutional establishment of religion. The District Court held that it does. Oral arguments were heard on the case in April of 2006, before the United States Court of Appeals for the Seventh District, in Illinois. On April 12, 2007, the U.S. Court of Appeals for the Seventh Circuit dismissed the case finding that the ACLU did not have standing..

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Zelman v. Simmons-Harris

Case decided by the United States Supreme Court on June 27, 2002 in favor of ACRU’s position. This case held that school voucher programs do not amount to an unconstitutional establishment of religion.

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ACRU Parker Cross-Petition Argument

The American Civil Rights Union filed an amicus curiae brief in the United States Supreme Court on Friday, October 12 in the case of Parker v. District of Columbia urging the Court to grant the requested writ of certiorari on behalf of 5 of the original 6 plaintiffs seeking to strike down the District's gun control laws as unconstitutional under the Second Amendment. The D.C. Circuit Court of Appeals had found that these 5 plaintiffs did not have standing in the case and dismissed them from the suit.

However, in regard to the remaining plaintiff, Dick Anthony Heller, the D.C. Circuit found that the Second Amendment did protect a right of individual citizens to keep and bear arms, and that the District's ban on handguns and their effective use in self-defense did violate the Amendment. The Court did, therefore, strike down the District's gun control laws regarding handguns as unconstitutional. The District has the strictest and harshest gun control laws in the nation, yet its notorious high crime rate and high murder rate persists.

The District has now asked the Supreme Court to hear its appeal from that decision. On October 5, the American Civil Rights Union filed an amicus curiae brief on that matter also urging the Court to hear the appeal, but to affirm the D.C. Circuit's decision on the Second Amendment in striking down the District's oppressive gun control laws.

The 5 original plaintiffs in the case who were dismissed for lack of standing have also asked the Supreme Court to hear their appeal seeking reinstatement. In its brief on their behalf filed on October 12, the ACRU argued that the Supreme Court should take the appeal and reverse the D.C. Circuit on this standing issue, reinstating the 5 original plaintiffs. ACRU General Counsel Peter Ferrara wrote the brief, stating,

"The courts cannot treat the Second Amendment as a politically incorrect, disfavored stepchild of the Bill of Rights. Fidelity to the Constitution requires the courts to give it the same zealous protection as every other right stated in our founding document. But the ruling on standing in this case does not reflect equal access to the courts for Second Amendment rights as for other rights."

Read the Parker Cross-Petition Argument here.


ACRU files Amicus Curiae in Heller v. DC

The American Civil Rights Union filed an amicus curiae brief with the U.S. Supreme Court on October 5, urging the Court to take the appeal of the D.C. Circuit Court of Appeals decision last March holding that the Second Amendment does protect an individual right of citizens to keep and bear arms. The ACRU wants the Court to take the case to affirm and thereby greatly strengthen this landmark ruling.

ACRU General Counsel Peter Ferrara told the Court, "The courts cannot treat the Second Amendment as a politically incorrect, disfavored stepchild of the Bill of Rights. Fidelity to the Constitution requires the courts to give it the same zealous protection as every other right stated in our founding document. The Amendment is not being read broadly to protect the rights and liberties of the people if it is somehow interpreted to allow the government to adopt a virtually complete ban on handguns, and an effective prohibition on the use of rifles and shotguns, as in this case."

Ferrara is Legal Director and serves as General Counsel for The American Civil Rights Union (ACRU). He also is currently the Director of Entitlement and Budget Policy at the Institute for Policy Innovation and is a Senior Fellow at the Free Enterprise Fund. In addition to various speaking engagements throughout the United States, he writes and produces studies and media presentations on a wide range of domestic policy issues, including the Second Amendment, tax reform, budget issues, government spending, health care, and a personal account option for Social Security.

The ACRU is dedicated to protecting our fundamental rights and liberties across the board. The ACRU focuses, in particular, on those areas of our civil rights that are ignored, or even actively undermined, by other supposed civil liberties groups. The ACRU also supports freedom of speech and of the press, sound principles of criminal justice, and proper voting processes and procedures, among others. Our policy board is comprised of Hon. Edwin Meese, III, Judge Robert H. Bork, Hon. William Bradford Reynolds, Dean Kenneth W. Starr, Dr. James Q. Wilson, Dean J. Clayburn LaForce and Professor Walter E. Williams.


Parker v. District of Columbia

The American Civil Rights Union filed an amicus curiae brief in the United States Supreme Court on Friday, October 12 in the case of Parker v. District of Columbia urging the Court to grant the requested writ of certiorari on behalf of 5 of the original 6 plaintiffs seeking to strike down the District's gun control laws as unconstitutional under the Second Amendment. The D.C. Circuit Court of Appeals had found that these 5 plaintiffs did not have standing in the case and dismissed them from the suit.

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