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NH Law Not Impacted by SCOTUS Ruling, But NHDems Still Vow to Fight

New Hampshire’s elected officials responded with anger and outrage to the news of the U.S. Supreme Court’s ruling overturning the 50-year-old Roe v. Wade decision, sending the regulation of abortion back to the states and the people. New Hampshire Democrats promised to fight. 

“I am angry and heartbroken by today’s Supreme Court decision. We knew this was coming, but it doesn’t make it any easier. Elections have consequences, and I will never stop fighting for access to abortion and a woman’s right to choose,” Sen. Jeanne Shaheen said on Twitter.

Sen. Maggie Hassan called the ruling a “radical” decision.

“The Supreme Court’s radical decision to take away a woman’s freedom – her right to bodily autonomy – has pulled us back decades,” Hassan said. “Abortion is a fundamental right. I won’t let this be the final word on our freedom, and I will keep fighting.”

U.S. Rep. Annie Kuster (D) said the conservative majority on the Supreme Court will go further unless Democrats win elections.

“Make no mistake – they are coming for contraception. They are coming for same-sex marriage. Elections matter. Vote,” she tweeted.

Alito’s majority opinion explicitly confronts that particular argument, saying, “Rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed ‘potential life.'” However, Justice Clarence Thomas, in a lone concurring opinion, suggested any cases resolved based on “substantive due process precedents” — which includes cases involving birth control and same-sex marriage — should be “reconsidered.”

Governor Chris Sununu released a statement repeating the fact that New Hampshire’s law isn’t impacted in any way by this ruling. “Regardless of this Supreme Court decision, access to these services will continue to remain safe, accessible, and legal in New Hampshire,” Sununu said.

Nevertheless, U.S. Rep. Chris Pappas, D-Manchester, still claimed the Supreme Court’s ruling impacted women in the Granite State.

“This decision is a devastating blow against the health, well-being, and personal freedom of women in New Hampshire and all across our country,” Pappas said.

And state legislators like Senate Minority Leader Donna Soucy (D-Manchester) went so far as to “implore” Sununu  “to call the Legislature back in for a special session to enshrine the right to safe, legal abortion care here in New Hampshire.” She did not explain how the court’s ruling affected abortions in the state.

State Sen. Tom Sherman, D-Rye, who is running to unseat Sununu, said he would fight to ensure women continue to have the right to abortion in New Hampshire.

“I trust women to make their own medical decisions, & I will fight to codify into N.H. law the right to a safe and legal abortion,” Sherman tweeted. “Access to safe abortions & contraceptives have allowed women to grow their careers and make choices that are right for them & their families.”

All four members of the state’s federal delegation support the Women’s Health Protection Act, which, if passed, would force states to allow abortions without restriction through all nine months of pregnancy.

Dartmouth Health, the state’s largest healthcare provider, issued a statement on Friday affirming it would continue to provide abortion.

“Dartmouth Health is unwavering in its belief in the sanctity of the patient-physician relationship to make the best-informed decisions for patients to reflect their needs and healthcare priorities,” the statement read. “We also strongly believe that abortion is an essential component of healthcare. Like all medical matters, decisions regarding abortion should be made by patients in consultation with their healthcare providers.”

While Democrats in New Hampshire and national were blaming Republicans for the decision, Kristen Day, Executive Director of Democrats for Life, pointed out that the party’s extremist stance on abortion likely cost it the support needed to protect Roe.

“Abortion activists are responsible for the Roe being overturned. They overstepped by celebrating abortion and advocating for it for up to 9 months. The Democratic Party embraced these extremists leading to Republican majorities all over the country,” Day wrote on Twitter.

New Hampshire Republicans offered muted praise for the ruling, emphasizing the court’s decision moves the issue back to the states.

“I’m proud of my pro-life record in the New Hampshire State Senate,” said Senate President Chuck Morse (R-Salem), a candidate for U.S. Senate. “Last year we settled the law in New Hampshire that permits abortions in the first six months while banning late-term and partial-birth abortions in the last 12 weeks of a pregnancy – a policy that the vast majority of Granite Staters support. This decision has no impact on New Hampshire. I strongly believe that the states should have the right to govern policy in their respective states as the Supreme Court has ruled,” Morse said.

Retired Gen. Don Bolduc, who is also running in the GOP U.S. Senate primary, applauded the court’s decision as well.

“As a pro-life candidate, I believe the Supreme Court made the right decision. After the death and destruction I’ve seen across war-torn places in Afghanistan and Africa, I believe all life should be protected,” Bolduc said. “We must understand that this opinion does not outlaw abortion. It returns the decision to the individual states to make the decision they think is best for their citizens. Here in New Hampshire, our state has already passed our own laws well before this Court decision. That is precisely how the Founding Fathers intended our Constitutional Republic to function.”

Kevin Smith, R-Londonderry, another GOP U.S. Senate candidate, said state legislatures are the appropriate place to make decisions about abortion laws.

“I support returning the matter to the state legislatures, so the people in each of those states have a say in determining when it is appropriate to put reasonable restrictions in place, such as New Hampshire has done on late-term abortions,” he said.

In the GOP primary for the First Congressional District, several candidates were quick to give credit for the ruling to former President Donald Trump.

“I applaud the Supreme Court’s righteous decision to overturn Roe v. Wade. Today, life wins, and the rule of law has prevailed. God Bless the Justices, and thank you President Trump!” said Karoline Leavitt, who is hoping to challenge Pappas in November.

Rep. Tim Baxter (R-Seabrook), another candidate in the crowded First District field, also thanked Trump, and said more work needs to be done.

“We need proven conservative leaders in Congress who will stand up against the radical abortionists’ attempts to codify abortion into federal law, and I look forward to defending the lives of the unborn once I’m elected to Congress,” he wrote.

Cornerstone Action, which has promoted pro-life legislation, issued a statement predicting violence against pro-life groups as a result of the decision.

“We expect today’s news will hasten political polarization around the country and inflame a hateful totalitarianism which threatens America’s constitutional order. We must also focus—more than ever—on the physical safety of pregnancy care centers and churches and, ultimately, on protecting the separation of powers and the rule of law,” Cornerstone said.

The Sununu administration appeared to take those concerns seriously.

Friday afternoon, New Hampshire’s Homeland Security and Emergency Management Division issued a state-wide alert after activists were gathering to protest the decision at several locations throughout the state.

“The State Emergency Operations Center has been partially activated as of 4:00 PM on Friday, 6/24/22 to monitor multiple events taking place across the state in response to a Supreme Court decision.”

Sununu Hails SCOTUS Ruling Blocking OSHA’s Vax Mandate

New Hampshire Gov. Chris Sununu today praised the U.S. Supreme Court’s ruling shutting the Biden administration’s attempts to use a workplace regulatory agency to enforce a COVID vaccine mandate on private businesses.

However, the court permitted the vaccine rule to be imposed on healthcare workers at institutions that receive Medicare or Medicaid funding, unless those employees have medical or religious exemptions.

“I would like to thank the Supreme Court for listening to the countless businesses across our state that would have faced catastrophic workforce shortages had this mandate gone through,” said Sununu. “I am as pro-vaccine as they come, but today’s decision to halt the president’s overreaching vaccine mandate is good news for employees and the businesses that keep our supply chains running and economy open.”

New Hampshire was one of 27 states that sued the Biden administration in various venues over its attempts to use the Occupational Safety and Hazard Administration (OSHA) to impose mandates on employers with 100 or more workers. The mandates, which required employees to either be vaccinated or undergo regular testing, would have affected 84 million workers.

OSHA issued its mandate in November, parts of which– including a mask mandate for unvaccinated workers — were scheduled to take effect this week.

Biden’s Chief of Staff Ron Klain re-tweeted a statement calling the OSHA rule “the ultimate workaround for the federal government to require vaccination,” a point noted by the court during its oral arguments last week. Klain’s attitude fed suspicions among some legal observers that the White House’s decision to issue the OSHA order is just the latest example of the Biden administration issuing a policy they know is unlikely to survive legal scrutiny for the sake of political messaging.

For example, when Biden issued a federal moratorium on evictions last August, he admitted, “The bulk of the constitutional scholars say it’s not likely to pass constitutional muster.” The Supreme Court swiftly struck it down.

It only took a week for the Supreme Court to do the same with the OSHA mandate, once it reached the high court. “Under the law as it stands today, that power [to regulate the pandemic] rests with the states and Congress, not OSHA,” Justice Neil Gorsuch said Thursday.

“By blocking the OSHA mandate, the Supreme Court showed that it’s possible to take statutory limits on federal power seriously, not just constitutional ones,” said Ilya Shapiro, director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute. “After all, even if we accept federal regulation of workplace safety as constitutional, there’s a difference between occupational risk and the general risk of living in a pandemic.”

New Hampshire Republicans have largely fallen in line with Sununu’s “Yes to vax, no to mandates” policy. State GOP legislators hailed the ruling as well.

“The Supreme Court confirmed what we already knew: the Biden vaccine mandate was a vast government overreach that reeked of despotism,” said House Majority Leader Jason Osborne (R-Auburn). “House Republicans have stood firmly against this assault on personal freedoms.”

It’s not just Republicans. While both Sens. Maggie Hassan and Jeanne Shaheen cast votes in support of the federal mandates, their fellow Democrat Rep. Chris Pappas, who likely faces an uphill reelection fight in a newly-drawn First Congressional District, broke with his party on the issue.

After Thursday’s ruling, Pappas released a statement reiterating his opposition to the mandates.

“I repeatedly expressed my concerns for small businesses as the Biden administration developed this standard, and I led a bipartisan call in the House opposing the requirement in its current form given the confusion and economic hardship it would have caused employers and workers,” Pappas said. “I continue to urge the administration to revise its approach so that we do not place unworkable or unnecessarily burdensome requirements on businesses who are still struggling to recover from the ongoing pandemic.”

Granite State business owners breathed a sigh of relief.

“The vaccine mandate was a giant overreach by the administration and the exact reason our Founders created the judicial branch to keep the executive branch in check,” said Tom Boucher, CEO of Great NH Restaurants.

In a new Scott Rasmussen poll, 55 percent of voters said they know a business that can’t find all the workers it needs.

“I’m proud that New Hampshire has one of the nation’s highest vaccination rates,” said Senate Majority Leader Jeb Bradley (R-Wolfeboro). “But firing people in the middle of a workforce crisis who don’t adhere to an unconstitutional federal mandate is not the answer.”

Exeter High Labels Catholic Student ‘Bully,’ Defends Punishment Over Free Speech

Exeter High School and SAU 16 struck back against a Catholic student suing over his free speech rights, saying he was disciplined for being a bully and not for expressing his religious views. However, they acknowledge in their court filing that the “bullying” in question was expressing his opinion on gender.

The student, known in the lawsuit as M.P., claims he was disciplined for expressing his opinion, informed by his Catholic faith, that there are only two genders. M.P. expressed these views off the school campus and was then suspended from the football team for one game, according to his lawsuit.

The district’s attorney, Michel Eaton, wrote in a response to the lawsuit filed late last week, there is no free speech case here. Eaton also claims M.P. was not suspended by the school, but benched for one game by his coach. The benching had nothing to do with the school’s anti-discrimination policies regarding transgender issues.

“M.P.’s coach did not decide to bench M.P. based upon M.P.’s opinion that there are only two genders, nor would he. Rather, M.P. was benched for using crude, inappropriate, and disrespectful language while communicating with Student Doe. This behavior was consistent with M.P.’s documented history of bullying and inappropriate behavior, including such behavior on the school bus and such behavior targeted at Student Doe specifically,” Eaton wrote.

Student Doe, who is not transgender or non-binary, is the student with whom M.P. had a reportedly heated conversation regarding gender and sexuality while on the school bus. The conversation later continued via text messaging, according to court records. Student Doe, in turn, reported the conversation — which took place outside the classroom and off the football field — to M.P.’s coach, Eaton wrote.

“M.P. ‘s coach took what he believed to be an appropriate and limited remedial measure to teach and ensure the respect that is expected of all student athletes,” Eaton wrote.

According to Eaton’s filing, Student Doe and M.P. have a long-standing antagonistic relationship. Eaton submitted as evidence the football team code of conduct, which M.P. signed, and copies of the text conversation between M.P. and Student Doe. However, both items were sealed by the court and not available to the public. 

Whether or not M.P. engaged in bullying, the district acknowledges in Eaton’s filing that M.P. was disciplined for expressing his views, however crudely, while off-campus. It’s similar to the free-speech case in which a Pennsylvania high school student was disciplined after she posted a profanity-laced message to Snapchat that she recorded at a convenience store.

The U. S. Supreme Court last year ruled 8 to 1 in favor of Brandi Levy, the former cheerleader at Mahanoy Area High School. The high court found the school violated Levy’s First Amendment rights when it reprimanded and suspended her from the junior varsity team because of her off-campus comments about the cheer team.

While the American Civil Liberties Union (ACLU) sided with Levy in her case, the New Hampshire ACLU has been silent in the case of M.P. In the past, protecting an individual’s personal speech against government action would have been a classic ACLU  case. But the organization has become openly partisan, as The New York Times reported in a story headlined “Once a Bastion of Free Speech, the A.C.L.U. Faces an Identity Crisis.”

Instead of suing on behalf of an individual’s rights,  New Hampshire’s ACLU is part of a federal lawsuit opposing New Hampshire’s new anti-discrimination law. They want to overturn the law preventing teachers and government employees from teaching that “a person, because of their membership in one or more identified group(s), is inherently either: (1) racist, sexist, or oppressive, consciously or unconsciously or (2) superior or inferior to people of another identified group.”

The ACLU-NH is joined in the lawsuit by Andres Mejia,  director of Diversity, Equity, Inclusion, and Justice for the Exeter Region Cooperative School District, and a board member of the Black Lives Matter Seacoast organization. Some Exeter parents have questioned whether a member of a group that claims all white people, regardless of their behavior, participate in white supremacy can treat students fairly. 

Writing about the Exeter case in the Portsmouth Herald, former political consultant Alicia Preston Xanthopoulos defended the Catholic student’s right to express opinions others — including the school district — don’t like.

“No one has the right not to be offended. I do actually have the right to say something that might offend you,” Xanthopoulos wrote. “That’s precisely why there is the First Amendment. It’s not there to protect popular speech, it is there to protect you from being punished by the government for speech that is not popular.

“Which, horrifyingly, is precisely what occurred here.”

NHGOP Tries to Paint Hassan, Shaheen As ‘Rubber Stamp’ For Democratic Party On Gorsuch Vote

The New Hampshire Republican Party and other conservative groups blasted the state’s two Democratic U.S. senators after they said they will vote against Judge Neil Gorsuch, President Donald Trump’s Supreme Court nominee, when he comes up for a confirmation vote next week. The senators also said that he should not be confirmed without 60 votes in the Senate.

Both Sens. Jeanne Shaheen and Maggie Hassan announced their decisions Tuesday.

Shaheen said his record on women’s reproductive rights is “very troubling” and he has a “very alarming record” of putting corporate interests before employees’ rights.

“I cannot support a Supreme Court justice who would turn back the clock on women’s reproductive rights,” she said in a statement. “I was also disheartened by his evasive answers to questions regarding the Citizens United decision, which has dramatically increased the amount of secret money in politics.”

Hassan released her decision with a post on Medium, writing “Judge Gorsuch is not in the mainstream. He has not shown a commitment to protecting the rights of all Americans, and he does not seem to always fully consider the consequences his decisions have on real lives.”

Both senators agreed with Senate Minority Leader Chuck Schumer, D-N.Y., that Gorsuch should be required to reach a 60-vote threshold in order to be confirmed.

“When President Obama nominated Judge [Merrick] Garland, Republican leadership immediately blocked his nomination, preventing a hearing and a vote. Despite this unprecedented obstruction by the Republican majority, I remain committed to upholding the constitution’s instruction to advise and consent on Supreme Court nominations,” Shaheen said. “As Judge Gorsuch’s nomination comes to the floor, I will support a 60-vote threshold for approval, an appropriate high bar that has been met by seven of the eight current Supreme Court justices.”

The GOP Senate leadership refused to hold a hearing or vote for former President Barack Obama’s nominee, Merrick Garland, last year. After Gorsuch’s hearings last week, Schumer said he will vote no on Trump’s nominee and asked other Democrats to join him in blocking an up-or-down, or direct “yay” or “nay,” vote on Gorsuch. To overcome that obstruction, Senate Majority Leader Mitch McConnell, R-Ky., needs 60 votes, or he could invoke the “nuclear option” and change Senate rules to allow Gorsuch to be confirmed by a simple majority vote.

There’s been some confusion over the language for confirming a Supreme Court nominee. By Democrats saying Gorsuch needs to be approved by a 60-vote threshold, the Washington Post’s fact checker gave them “Two Pinocchios,” calling it “slippery” and “misleading.” It’s not required for nominees to get 60 votes, since two of the current eight justices that sit on the bench did not meet that “standard.”

Despite that, Hassan also agreed with the 60-vote threshold for Supreme Court nominees.

NHGOP Chairman Jeanie Forrester said Shaheen was participating in “political partisanship” by denying Gorsuch’s confirmation.

“Sadly, Senator Shaheen would rather play obstructionist games and vote lock-step with liberal Democrats, like Chuck Schumer, than confirm a judge who has received high praise across the board,” Forrester said in a statement.

Forrester also accused Hassan of not being an “independent voice” in the Senate, despite promising to be that during the campaign last year.

“The truth is, she is serving her party’s leadership in Washington and its extreme left wing,” Forrester said. “This is pure politics.”

America Rising Squared (AR2), an arm of the Republican opposition research group America Rising, also attempted to paint Hassan as being a rubber stamp for the Democratic Party and just repeating what Shaheen does.

“Senator Hassan’s obstruction to the highly qualified Judge Gorsuch proves that not only is she willing to take marching orders from the loony liberals in her party, it is another reminder she is going to follow Shaheen’s every move,” said Nathan Brand, spokesman for AR2 and former U.S. Sen. Kelly Ayotte campaign staffer.

Despite the political backlash for their decision not to confirm Gorsuch, Shaheen, Hassan, and even Schumer have used different rhetoric in the past about Supreme Court nominees.

Hassan penned an op-ed in the New Hampshire Union Leader last year, calling on the Senate to hold a hearing and vote to fill the Supreme Court vacancy left by the death of Justice Antonin Scalia

“As is often said, justice delayed is justice denied. A stalled Supreme Court will not move our country forward; it will only exacerbate the deep political divide and gridlock in Washington,” Hassan wrote.

There was also some confusion earlier this year on Shaheen’s comments about Gorsuch’s confirmation vote. On the Senate floor, she surprised many people when she said on February 7 that she would support an up-or-down vote.

“Unlike the Republican majority, I haven’t heard any Democrats saying we don’t think that Judge Gorsuch should get a hearing or that he should get an up-or-down vote,” she said. “Everybody I’ve talked to agrees he should get a hearing and an up-or-down vote.”

However, Ryan Nickel, Shaheen’s communications director, took to Twitter to correct the record saying she meant a cloture vote, or 60 “yeas” to be approved.

In a 2013 press conference, Schumer said Democrats prefer up-or-down votes, “no matter who’s in power.”

“We much prefer the risk of up-or-down votes in majority rule, than the risk of continued total obstruction. That is the bottom line, no matter who’s in power,” Schumer said.

Gorsuch is scheduled to receive a vote on April 7.

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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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Opponents of Flag Desecration Law Say House Bill Targets Low-Income Families

It’s not often that the New Hampshire Legislature proposes a law that goes against a U.S. Supreme Court ruling. But that’s what Rep. Robert L’Heureux’s bill on flag desecration did.

The Merrimack Republican introduced House Bill 532 in the House Health, Human Services and Elderly Affairs Committee on Wednesday, which would have prohibited a person who desecrates a United States flag or New Hampshire state flag from receiving financial assistance from the state, including, but not limited to, “financial assistance to needy families, food stamps, and tuition assistance.”

“All we have to do is watch the news on tv and you see the American flag being burned, trampled on, and desecrated,” L’Heureux testified before the committee. “I fully agree and support freedom of speech. However, I don’t think I, as a private citizen or individual, should financially support someone who refuses to accept what we stand for.”

He said he understood that this bill was likely not going to pass and attorneys told him that it’s illegal. In fact, the bill received an “inexpedient to legislate” on a 18-1 vote. Two representatives switched their vote to go against the bill after the committee first voted on whether it “ought to pass.” Rep. Donald LeBrun, R-Nashua, was the only representative to fully support the bill after two rounds of voting.

Even though L’Heureux knew the bill was going to fail, he said he was trying to raise awareness for an issue.

“When we meet veterans and veteran survivors, we need to be able to tell them that we’ve done everything we can within the scope of the law,” he said.

The U.S. Supreme Court ruled in Texas v. Johnson (1989) and reaffirmed in U.S. v. Eichman (1990) that due to the First Amendment, it is unconstitutional, including federal, state or municipalities, to prohibit the desecration of a flag due to its status as “symbolic speech.”

However, restrictions may be imposed to regulate the time, place, and manner of flag desecration. For example, if the flag that was burned was someone else’s property, they could be charged for petty larceny or with destruction of property.

There have been several proposed Flag Desecration Amendments to the U.S. Constitution, which would allow Congress to enact laws prohibiting the act. To be added to the Constitution, it must be approved by a two-thirds vote of those present in both chambers and be ratified by at least three-fourths of the 50 state legislatures.

The closest the amendment ever came to getting through Congress was in 2006, when the House passed a resolution 286-130, but it fell short in the Senate by one vote, 66-34. The Republican nay votes included Sens. Bob Bennett of Utah, Lincoln Chafee of Rhode Island, and Mitch McConnell of Kentucky.

Despite flag desecration being illegal, an Associated Press analysis shows at least 40 states still have them, punishing those who burn or damage the U.S. flag or even state flags with fines and jail time. At least eight people have been arrested since 2007 for burning a flag while walking in traffic or hanging a torn flag from a tree. There are also some Southern states that extend the law to Confederate flags.

But a lot of lawmakers don’t see the need to remove the law from the books because it could be seen as politically motivated even though it’s already been illegal according to the highest court. Arkansas, Connecticut, Missouri, New Hampshire, and Rhode Island have been the only states that took any action to get rid of their flag-desecration laws. Alaska, Wyoming, and Wisconsin don’t have any laws about it.

Opponents of the proposed New Hampshire law found problems that it went against a Supreme Court decision, but also that it would take away state financial assistance from people.

“The fundamental problem with this bill is that is constitutes viewpoint discrimination,” said Gilles Bissonnette, legal director of the New Hampshire chapter of the American Civil Liberties Union (ACLU). “The state can’t withhold that benefit on the basis of someone’s viewpoint. You don’t lose your free speech rights when obtaining government assistance.”

Despite knowing that the bill was illegal, many Republican representatives agreed with the sentiment of the bill, and made that known throughout the hearing.

Rep. Mark Pearson, R-Hampstead, said the ACLU supports colleges and students that want “trigger warnings” to be included on class syllabi or on campus, so why shouldn’t they support people who find flag burning trigger-worthy?

Rep. Martin Bove, R-Londonderry, asked if he were to burn a Mexican or Saudi Arabian flag, would that be considered hate speech?

Bissonnette said the ACLU would consider that free speech.

Sarah Mattson Dustin, policy director for NH Legal Assistance, said the bill targeted low-income families who might not have alternative methods to disposing of flags in a proper manner.

“The bill would prohibit financial assistance that is not limited to Medicaid and other programs,” she said. “When you think about that in context, you think about someone in their youth, should we prohibit them from receiving these programs later in life?”

Mattson Dustin said one of her biggest issues with the bill was that the language was vague.

“The bill does seem directed toward people who are receiving assistance programs, and I don’t know it could apply to someone who would get a state contract,” she said. “The language is very broad.”

L’Heureux said he would be supportive if the committee drafted a resolution saying they believe flag desecration is un-American, and it was subsequently passed in both chambers of the Legislature. Or he would wait until the Supreme Court decision was overturned. Either way, he said he wasn’t done pushing this issue.


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