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HUYETT: NH Senate Democrats Just Voted to Allow ‘Suspending’ the Constitution

New Hampshire liberty advocates won a major victory on Wednesday when our State Senate voted to pass HB 440, Rep. Jim Kofalt’s Civil Liberties Defense Act. This bill will prohibit constitutional rights from being suspended during a state of emergency.

Kofalt proposed the bill because New Hampshire’s emergency powers laws have been interpreted by our state courts to allow a governor to suspend constitutional rights during an emergency. This is no exaggeration: According to the legal test used by our state courts, even “fundamental rights such as the right of travel and free speech” may be “suspended” by a governor in a declared emergency.

That means that, as Rep. Michael Sylvia pointed out during a House floor debate, “We are all enjoying our fundamental rights, including free speech and trial by jury, at the mercy of the current governor.” As long as a governor’s actions are related to a declared emergency, any constitutional challenges to those actions can simply be dismissed out-of-hand.

Although HB 440 faced some initial setbacks, on Wednesday every Republican State Senator joined in sponsoring an excellent floor amendment that restored the key substance of the bill. Senate Republicans then voted unanimously to pass the bill and protect our constitutional rights. It’s important to contact your Republican state senator now and thank them for their vote.

During Wednesday’s Senate floor debate, Republican Sen. Sharon Carson made a powerful argument in favor of HB 440. During World War II, the legal theory of “suspending constitutional rights” was used to uphold the internment of Japanese Americans in detention camps. Carson pointed out those Americans had their property confiscated and their lives destroyed by a government wielding unchecked emergency powers. As Sen. Jeb Bradley noted, abuses of that kind should be unthinkable in the “Live Free or Die” state.

Republican Senators wisely made clear this bill is not a repudiation of Gov. Chris Sununu. As Rep. Matt Simon said during the initial House floor debate, the bill is necessary to “shore up our constitutional defenses during a state of emergency so the responsibility for any potential future abuses will not rest upon our shoulders.” Accordingly, Sununu is likely to sign the bill. When he does so, he will deserve our thanks for helping to protect the fundamental rights of Granite Staters from his successors and their subordinates.

While Wednesday’s vote is a great victory, it should also serve as a dire warning about the intentions of New Hampshire Democrats. In the House, HB 440 did enjoy a modicum of bipartisan support, including from Democratic former House Speaker Steve Shurtleff. In the Senate, however, Democrats unanimously voted against the bill.

Democratic Sen. Rebecca Whitley rose to speak against the proposal. In her remarks, she claimed it would prevent judges from balancing the public interest against individual rights in times of emergency. But that is false.

Courts balance the public interest and individual rights in perfectly ordinary constitutional challenges every single day. As a trained lawyer, Senator Whitley must know this. Our problem in New Hampshire is that a “suspension” theory is not a balancing test: It is a rubber stamp on government action. So long as an executive’s actions are factually connected to a state of emergency, New Hampshire courts have said they will simply set constitutional rights aside. That is not “balancing.”

Aside from Whitley’s ambiguous remarks, Democrats offered no explanation for their votes to allow “suspending” the Constitution. The only thing we know for sure is Senate Democrats have just voted to uphold the same legal doctrine that Franklin Roosevelt once used to put an entire race of people into camps.

As recently as the first candidacy of Barack Obama, many Democrats claimed to be champions of civil liberties. Rep. Steve Shurtleff seems to represent this form of Democratic politics—one that is increasingly rare in his party today.

Instead, in today’s Democratic Party, authoritarian cultural progressivism is the order of the day. Many Democrats appear eager to wield unchecked power over their political adversaries, and Wednesday’s vote was a startling reminder of that fact. Granite Staters should be wary of what Democrats could do with that power if they regain control of the state government.

To learn more about HB 440, see Cornerstone’s page of resources on the bill. Don’t forget to thank your Republican senator for voting to safeguard our constitutional rights and to thank Kofalt for his tireless efforts on behalf of liberty.

Exeter Teen Disciplined for Expressing Catholic View on Gender

An Exeter High School freshman, who is also a practicing Catholic, was suspended from school sports after he affirmed the Catholic Church’s teachings on gender during a private conversation with another student.

Now the teen, identified in court records as M.P., and his family are suing the district for violating his rights. M.P. is represented by Cornerstone attorney Ian Huyett.

According to a Cornerstone statement, M.P. did nothing except express his constitutionally protected views. “M. P. did not harass or demean any student, but simply expressed his views on a contentious cultural issue.” 

Exeter Region Cooperative School Board Chair Helen Joyce did not respond to a request for comment. The lawsuit is filed in Rockingham Superior Court.

Cornerstone is a Christian advocacy non-profit based in Manchester and founded by conservative politician and activist Karen Testerman. According to Cornerstone, M.P. did not target or bully any transgender student with his speech. Instead, he was punished by Assistant Principal Marcy Dovholuk after he had a private conversation with another student.

M.P. had an exchange with a progressive student, who is described as not being transgendered, on a school bus. During the conversation, M.P. relayed his belief informed by Catholic teaching that there are two genders, male and female. This exchange was followed by a conversation between the two students over a text messaging app. That’s when the progressive student then got Dovholuk involved.

“The student then turned a copy of this text conversation over to Vice Principal Dovholuk, who confronted M. P. with printed copies of the text messages. M. P. was then subject to an athletic suspension,” according to the complaint.

Dovholuk suspended M.P. from athletics because of this conversation, which happened outside the school building, Cornerstone said.

Exeter adopted a Gender Nonconforming Students policy in 2016 that states in part, “[a] student has the right to be addressed by a name and pronoun that corresponds to the student’s gender identity,” it also includes a broader rule: “the intentional… refusal to respect a student’s gender identity… is a violation of this policy.” 

Exeter parents are already wary of the district’s handling of controversial issues and what many parents believe is an ideological bias among its leadership.

Exeter’s SAU 16 was put on notice by the state last month when the New Hampshire Attorney General’s Office and the office of the Commissioner for New Hampshire’s Department of Education published a joint report on several concerns at the school, involving the violation of student rights. 

The report found, among other issues, that the school violated students’ rights during the prom when school staff put marks on the hands of students to indicate their vaccination status. 

And the district’s Director of Diversity, Equity, Inclusion, and Justice, Andres Mejia, is part of the leadership team of the Black Lives Matter Seacoast organization.

Asked if, given his open ideological advocacy for BLM, he would work on behalf of religious and conservative students, as much as he works for minority and LGBTQ students, Mejia insisted it would not be a problem.

“My role is working for all students,” Mejia said. “And conservative children are part of that.”

The complaint alleges the district is violating M.P. ‘s rights under Article 22 of the New Hampshire Bill of Rights which protects his right to free speech. The suit also argues the school had no legal ability to punish M. P. for the content of his off-campus text messages.

As many other districts in New Hampshire have adopted similar policies to those in Exeter, M.P. ‘s case could have wide-ranging impacts throughout the Granite State.

“The key question before the court will be if Exeter’s Gender Nonconforming Students policy, nearly identical to the policy adopted by school districts across the state, can be used to suppress the free speech rights of students who hold dissenting views,” Cornerstone said in a statement.

Battle Underway to End Prayer in New Hampshire Air National Guard

The New Hampshire Air National Guard at Pease is under pressure to end prayer and readings from the Bible by a chaplain during their ceremonies, but a spokesman for the military base said they plan on continuing the tradition anyway.

Last month, the Freedom from Religion Foundation (FFRF), a Wisconsin-based group, sent a letter to the leadership of the N.H. Air National Guard after “a concerned guardsman” contacted the organization to tell them that ceremonies at Pease International Tradeport led by a chaplain regularly include prayer.

However, the First Liberty Institute, a religious liberties legal group in Texas, is pushing back against the effort to end those activities, sending their own letter to the base on Tuesday.

Greg Heilshorn, spokesman for the New Hampshire National Guard, which includes the Air National Guard and Army National Guard, confirmed to NH Journal on Thursday that they received the letters from the organizations, but do not plan to respond to them.

“We don’t plan on responding to the FFRF,” he said. “We haven’t had any formal complaints from our airmen internally regarding any concerns with prayers being said at various ceremonies. We will continue as we’ve done before. It’s our tradition. We believe our chaplains…[are a] vital part of our organization.”

Sam Grover, staff attorney for FFRF, said he is “disappointed” that the N.H. National Guard refuses to respond to their complaint.

“Now that the base has been made aware that there are guardsmen who object to this practice, it is all the more important that they take this issue seriously,” Grover told NH Journal in an interview. “I hope they would take a complaint letter from FFRF just as seriously as any formal compliant internally. We will absolutely get back in touch with the complainant and review other options. We will see what other legal remedies we can pursue.”

The FFRF letter sent in February was to ensure that the military base is respecting the separation of church and state by not forcing active duty members or veterans from participating in prayers and Bible readings that mention the Christian God. The group claims that prayer and readings from the Bible in this capacity are unconstitutional and go against the Establishment Clause in First Amendment of the U.S. Constitution that prohibits the establishment of religion from the federal government.

“Calling upon soldiers, their families, and other guests to pray is coercive and beyond the scope of a government entity like the Air National Guard. All military members are free to pray privately or to worship on their own time, in their own way. They do not need their employer to dictate prayers for them. It is also simply insensitive for a government employer to inflict prayer on employees regardless of their personal beliefs.”

“Christian prayers delivered at an official military event violate the Constitution’s mandate of government neutrality between religious beliefs,” the letter continued. “Any prayer — including non-denominational prayer — violates the required neutrality between religion and nonreligion. By imposing prayer on its guardsmen at mandatory events, the Air National Guard is violating the constitutional limits on government religious endorsement.”

First Liberty is arguing that chaplains have every right to say prayers and read from the Bible, calling FFRF’s letter erroneous.

“The FFRF’s position and legal argument are incorrect,” senior counsel Mike Berry wrote in a Tuesday letter to Pease leadership officials.

“Federal law, military regulations, and court precedents belie the FFRF’s specious claims,” he added. “Uniformed chaplains are clearly permitted, indeed protected, when they offer invocations at military functions.”

Heilshorn said prayer is a “traditional part” of their ceremonies — whether they’re deployment, retirement, or promotion ceremonies — but he would classify them as nondenominational.

“Typically they’ll [chaplains] offer a prayer in the beginning [of a ceremony] and then a closing prayer at the end of the ceremony,” he told NH Journal. “There is no forced message in them. Typically it’s open to all religions. If you do not subscribe to a specific religion, you are free to not participate, whether you bow your head or not, or just prefer to stand in formation.”

The fact that the guardsmen are forced to stand in formation while listening to a religious message is “government coercion,” Grover said.

“Military institutions are inherently coercive,” he said. “In the chain of command a subordinate officer must respond to what his or her superior is asking without questions. Guardsmen at this base are expected to follow orders and those order often include attending invocations with prayer. It is absolutely incumbent upon a government employer to allow its employees to do their jobs free from proselytization. That is currently not happening at Pease and that needs to change.”

Heilshorn said he attended many ceremonies as a public affairs officer, but he’s never heard of chaplains quoting the Bible during invocations. He then backtracked to say that they “might quote some of the more iconic or well-known verses about going into combat or going into war, but nothing at length or in depth.”

“If they are quoting something out of Scripture, they’re typically all inclusive and thematic, whether it’s of love or support or courage or hope,” he said.

Regardless if the chaplain’s prayer has a universal theme, they could still use the opportunity to push their own beliefs, Grover said.

“Religious promotion in the military is a rampant problem,” he said. “There are many situations where chaplains try to indoctrinate service members. A lot of high ranking officers are themselves religious so they don’t see the problem. But if a chaplain is choosing to also promote their personal religious beliefs, then they’ve crossed the line.”

Heilshorn reiterated the chaplain’s role in providing spiritual guidance before guardsmen are deployed and being a resource for their families.

First Liberty wrote their letter on behalf of the Chaplain Alliance for Religious Liberty, an organization that touts more than 30 ecclesiastical endorsing agencies and 2,600 military chaplains. Berry pointed to the Religious Freedom Restoration Act (RFRA) and the National Defense Authorization Act that forbids the federal government “from substantially burdening a person’s religious exercise absent a demonstrated compelling government interest that is achieved by the least restrictive means.”

Unless it impacts “military readiness, unit cohesion, or good order and discipline, the DoD [Department of Defense] must accommodate individual expressions of religious belief, which undoubtedly include a military chaplain’s invocation,” Berry wrote.

First Liberty also noted the 1997 federal court ruling of Rigdon v. Perry, which ruled in favor of a Catholic priest and Orthodox Jewish rabbi, both military chaplains, who wanted to speak about banning partial-birth abortion, despite a military ban on preaching on pending federal legislation. The court determined that the military could not ban chaplains from following the instructions of their religious leaders.

“In Rigdon v. Perry, a federal court explained that when military chaplains are acting in a religious capacity — such as when conducting a sermon or offering an invocation — they are not acting under color of military authority, and ‘it is wholly appropriate for them to advance their religious beliefs in that context,’” Berry wrote in the letter. “Thus, when military chaplains engage in religious conduct, their conduct is protected under the First Amendment to the Constitution.”

Grover argues that court case doesn’t apply to the situation at Pease.

“That case had nothing to do with a formal military event,” he said. “That conclusion is completely in line with our argument that when a military chaplain is invited to an official military event, they are acting on behalf of the military. This is government speech. This is the government promoting a message at an event. When a government employee is invited to speak in an official capacity, they have an obligation to not promote religion.”

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Was the Possible Delay in NH’s Gender Identity Bill Expected?

A bill banning discrimination against gender identity appears to be in trouble in the New Hampshire House. Before the House votes, House Speaker Shawn Jasper is recommending that representatives table the bill.

“The bill is just not ready to move forward,” he told the Concord Monitor. “My concern is with those who are transitioning … going into restrooms, showers, locker rooms, anyplace where it may make someone uncomfortable for a whole myriad of reasons.”

House Bill 478 would prohibit discrimination based on gender identity in employment, housing, and public accommodations. At least 18 other states, including other New England states like Maine, Vermont, Massachusetts, Connecticut, and Rhode Island, have gender identity anti-discrimination laws on the books, according to the American Civil Liberties Union.

New Hampshire already has a law prohibiting discrimination based on sexual orientation, but not gender identity. A previous version of this bill was defeated in 2009, but former Gov. Maggie Hassan signed an executive order banning gender identity discrimination in state government.

The current bill passed the House Health, Human Services and Elderly Affairs Committee on a 15-2 vote, and includes sponsors from high-ranking Democrats and Republicans, including House Democratic Leader Steve Shurtleff and Senate Majority Leader Jeb Bradley.

Over the weekend, lawmakers’ email accounts were flooded with comments about the legislation. More than 800 emails since Friday appeared in representatives’ inboxes through the House-wide listserv, according to reports. The hard part is sifting through it all to determine who is writing and where its coming from.

Some of the emails were templates from people who didn’t give an address or full name, making it difficult to determine if they were state residents or not, and lawmakers said they were receiving more emails in opposition than in support of the bill, resulting in some representatives changing their support.

“The public is not ready,” wrote Rep. Jess Edwards, R-Auburn, in an email to all House members on Sunday. Edwards backed the bill in committee, but changed his mind after the influx in messages.

“The number of people who have written stating that this bill essentially offers their children up to sexual predators is outrunning by 5 to 1 the number of emails stating that it’s time to end the daily beatings of transgendered people,” he added. “The passionate are yelling past each other with worst case scenarios. I don’t think this is an environment in which the legislature should pick a side.”

Advocates of the bill turned out in overwhelming support for the bill when the committee heard public testimony on it in February, making it seem like it had the majority of public backing and would sail through the rest of the Republican-led Legislature. They say the protections are needed for transgender people, who testified they have been fired, harassed, or discriminated against because of their gender identity.

“I have experienced way too many instances of employment discrimination,” said Shana Aisenberg, a transgendered woman from Freedom who is a musician and music teacher, at the hearing. “Musicians with whom I play stopped calling me. Students cancelled lessons. A music camp where I taught for 10 years fired me because I changed my gender.”

However, opponents of the bill said it could lead to men entering women’s bathrooms to take advantage of them. The bill is not specifically about bathrooms, but it’s an example that’s been widely used throughout the country. Conservatives say it’s about protecting the rights of privacy and religious liberty for New Hampshire residents.

On the religious liberty front, Cornerstone Action is claiming that the bill would negatively impact churches and religious organizations. A lawsuit could potentially arise out of churches, faith-based charities, schools, and ministries who are protected by the state religious exemption, but it’s only applied to “persons of the same religioun or denomination.”

Law experts have argued that these faith-based organizations would have to check everyone at the door to determine if they are of the same religion or denomination in order to maintain separate gender bathrooms. Even if someone argues that they belong to the same religion, they could sue for discrimination against their rights, and the legal fees could be crippling for the faith-based groups. They point to an incident that happened in Massachusetts last year as an example.

Cornerstone Chairman Charlie McKinney wrote a letter to constituents asking them to sign on to a petition that would go to Jasper. The petition states the bill puts “the feelings of gender-confused individuals” over citizen privacy and safety.

“For centuries, we have had social mores, now dubbed ‘discriminatory,’ that are in truth loving, since they informally embraced a moral code that pointed to acceptance of how God created us,” he wrote in the letter. “Although most of the national press on this issue has focused on bathrooms, that’s not what is really at stake for us as Christians. At issue here, as with most other social issues, is the freedom to declare the Truth and conform our lives to the will and design of our Father and Creator.”

It’s possible that a majority of Jasper’s emails are coming from people who signed the petition, which includes a pre-written text. But Freedom New Hampshire, a group that supports the bill, also has a similar message on its website for people to sign, click, and send to their representatives.

“This legislation is about leveling the playing field. Everyone deserves to work hard, put a roof over their head and participate in public life without constant fear of discrimination,” the note states. “But because there are no explicit protections for transgender people under state law in housing, employment, or public accommodations, they must live in fear every day of being wrongly fired, evicted, or denied service—just because of who they are.”

Yet, the possible defeat, or delay, of this bill could have been expected, according to a recent survey on the bill. The Citizens Count, NH’s Live Free or Die Alliance — a nonpartisan organization looking to give citizen’s a voice in their local government — conducted a Facebook survey of New Hampshire residents on their support for the bill in January.

Approximately 56 percent of respondents said they opposed the bill and 44 percent said they supported it. Of course, the methodology is not an exact science, but the results and testimony provide insight from people who might not be able to attend a public hearing at the State House in the middle of a work day.

The national debate on transgender rights comes at a difficult time in the community’s fight. It started last year when North Carolina passed a bill requiring people to use public restrooms that match the gender on their birth certificates. Texas is poised to take up a similar bill during the current legislative session.

The U.S. Supreme Court on Monday sent a case involving a Virginia transgender high school student, who is seeking to use school bathrooms that match his gender identity, back to a lower court, meaning that it will go back to a court of appeals and makes it highly unlikely the Supreme Court will hear it this term.

This decision comes on the heels of a change in policy by President Donald Trump’s administration, which revoked last month Obama-era guidelines on protections for transgender students in public schools.
The House is expected to vote on the bill during their Wednesday executive session.

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