Family Action PAC February Luncheon featuring John Eastman

The Family Action PAC invites you to join us on February 16, 2017,  for our monthly luncheon featuring speaker John Eastman!
He will be updating us on the state of the Supreme Court, including a discussion of the new nominee, Neil M. Gorsuch.

Dr. John Eastman is the Henry Salvatori Professor of Law & Community Service and former Dean at Chapman University’s Dale E. Fowler School of Law, where he has been a member of the faculty since 1999, specializing in Constitutional Law, Legal History, and Property. He also leads the Center for Constitutional Jurisprudence, a public interest law firm affiliated with the Claremont Institute that he founded in 1999. He has a Ph.D. in Government from the Claremont Graduate School and a J.D. from the University of Chicago Law School, and a B.A. in Politics and Economics from the University of Dallas. He serves as the Chairman of the Board of the National Organization for Marriage and is Chairman of the Federalist Society’s Federalism & Separation of Powers practice group.

Please RSVP as soon as possible, and feel free to invite your friends and family to join! You can contact us with your attendance status and names at
(949) 955-1191 or email 

The luncheon will be at noon at the Pacific Club in Newport Beach. Please join us for this very important and timely talk.
Lunch is free for first-time visitors and certain memberships ($500 annual membership and up). Otherwise, it is $35 per person.

Thank you, and we hope to see you there!

UPDATED: Family Action PAC General Election Endorsements

The following is a list of the endorsements by the Family Action PAC as of October 18,2016 per the submission of a candidate questionnaire, and approval from the Family Action PAC’s Board of Directors.

California State Senate

Pat Bates, 36th California State Senate District

City Council

Mike Munzing, Aliso Viejo City Council

Dawn Holthouser, La Habra City Council

Tim Shaw, La Habra City Council

Janine Heft, Laguna Hills City Council

Dwight Robinson, Lake Forest City Council

Dean Grose, Los Alamitos City Council

Joe Carchio, Huntington Beach City Council

Trish Kelley, Mission Viejo City Council

Cathy Schlicht, Mission Viejo City Council

Tony Beall, Rancho Santa Margarita City Council

Ronda Mottl, San Juan Capistrano City Council

Austin Lumbard, Tustin City Council

School Boards

Helen Kingsbury, Placentia-Yorba Linda School Board

Susie Khan, Placentia-Yorba Linda School Board

Irene Yezbak, Placentia-Yorba Linda School Board

Angie Cano, Santa Ana School Board

Cecilia Iglesias, Santa Ana School Board

School Districts

Jake Vollebregt, Capistrano Unified School District

Chad Morgan, Corona-Norco Unified School District

Brenda Lebsack, Orange Unified School District


This list is subject to the addition of endorsed candidates leading up to the election date in November.

Congratulations and good luck to all of our endorsed candidates!


Last charge dropped against anti-abortion duo behind Planned Parenthood videos

A Texas judge on Tuesday dismissed the last remaining charge against two anti-abortion activists who made undercover videos allegedly showing Planned Parenthood officials selling baby body parts

District Judge Brock Thomas dismissed the charge of tampering with government records against 27-year-old David Daleiden and 63-year-old Sandra Merritt upon the request of the Harris County prosecutor’s office.

“The dismissal of the bogus, politically motivated charges against [Center for Medical Progress] project lead David Daleiden and investigator Sandra Merritt is a resounding vindication of the First Amendment rights of all citizen journalists, and also a clear warning to any of Planned Parenthood’s political cronies who would attack whistleblowers to protect Planned Parenthood from scrutiny,” Daleiden said in a statement.

The pair’s attorneys had pushed to have the charge dismissed, saying Daleiden and Merritt never should have been indicted. If they had been convicted of the felony charge, each could have been sentenced to up to 20 years in prison.

Prosecutors alleged that Daleiden and Merritt used fake driver’s licenses to conceal their identities while dealing with Planned Parenthood.

Daleiden claimed victory on Tuesday, not only for his legal woes coming to an end, but also due to the continuing investigation into Planned Parenthood’s practices, an investigation spurred on by the videos he helped produce.

“A year after the release of the undercover videos, the ongoing nationwide investigation of Planned Parenthood by the House Select Investigative Panel makes clear that Planned Parenthood is the guilty party in the harvesting and trafficking of baby body parts for profit,” Daleiden said.

The Associated Press contributed to this report.

Click here to read the article and watch the corresponding videos.

July Luncheon featuring Robert Hammond

The Family Action PAC invites you to join us for our monthly luncheon on Thursday, July 21st at noon featuring former OC Board of Education Trustee Robert Hammond.

Mr. Hammond was born and raised in Orange County. After graduating from Orange High in 1979 (class of the “Figs”), he volunteered for the US Marine Corps and served with Ronald Reagan as his Commander-in-Chief.  He was a Combat Engineer and was the assistant platoon leader of his training detachment.

He subsequently was cross-trained in three additional areas (Direct Air Support, Administrative Files & Directives, and Postal). Robert embarked on a teaching career in 1993 and taught Special Education for six years. He finished teaching with a 5th grade Structured English Immersion class in Santa Ana. After this, Robert moved into a support role for teachers by training teachers and working with parents to teach reading to students. Robert also spent time teaching adults how to read. Robert and his wife, Dawn, started a non-profit organization dedicated to teaching children and adults how to read and improve their writing.

Personally, Robert believes in and promotes parental rights, personal responsibility, greater educational options (more Vocational Education, Charter Schools, and Home Schools), and Checks and Balances. As a conservative, he supports small, reasonable, responsibly-run, financially frugal, limited government and is willing to pay for this.

The luncheon will be at noon at the Pacific Club in Newport Beach. Please join us for this very important and timely talk. Lunch is $35 per person, and free to first-time visitors.

The George Washington You May Not Know

by John Shu

Why do we refer to the President of the United States as “Mr. President,” instead of something like “Your Excellency,” or “Your Grace?”

Why does the President say “So help me God” as the last words of his oath of office?

From where did the concept of the President’s “executive privilege” come?

Why has only one U.S. President (Franklin Delano Roosevelt) served more than two terms, even though every president up until Eisenhower could have done so?  (The 22nd Amendment was ratified on February 27, 1951?)

Why is our nation’s capital called “Washington, D.C.?”

The answer to the above questions, and more, is our first president, George Washington.

He was a physically large and imposing man, standing approximately 6’3” when the average colonial male in the late 1700’s stood approximately 5’6”.  Despite his imposing size, he was humble, God-fearing, and very shy.[1]

Washington was a man of the highest courage, honor, and integrity.  He was also a man of few words, a man for whom his actions spoke with strength and courage.  For example, his second inaugural address is the shortest of any president, and perhaps any world leader, at only 135 words.


Washington’s personal humility and commitment to his new country’s unique system of government are the reasons why we have never used royal titles such as “Your Majesty” or “my Lord” to address our national leaders, despite many people’s wish to do so at the time.  Washington recognized that the United States had just fought a terrible war against the British monarchy and its imperial ways.  He therefore judged monarchial titles as unseemly.  People referred to Washington as “Mr. President,” and that tradition still holds today.  For other federal officials, we have a House of Representatives instead of a House of Commons (i.e. for the “commoners”), and a Senate instead of a House of Lords (i.e. for the nobility).  We have executive “departments” instead of “ministries” (e.g. Department of Defense, and not Ministry of Justice), and accordingly we have a “Secretary” who serves the department, instead of a “Minister” who leads the ministry and its bureaucratic flock.


Washington, a man of strong faith, himself added “So help me God” to the end of his inaugural oath of office, a phrase which we still use today.  On April 30, 1789, Chancellor Robert Livingston of New York administered the oath of office to Washington, which said, “I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States,” and to which Washington added the now-immortal words, “So help me God.”


Washington’s faith carried him all the way through the end of his second term as President of the United States.  Washington firmly believed that the young United States government had to have and exercise strong morals, and that those morals came from strong Christian foundations.  Indeed, Washington firmly believed that such Christian principles were the bedrock for strong justice because these principles promoted the protection of life, liberty, reputation, and property.


In his Farewell Address of September 1796, he re-emphasized his strong support of the interrelationship between religion and morality, particularly in promoting private, public, and national political happiness and prosperity.  Washington wrote, “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports.”  As befitting his natural humility, Washington never read the Farewell Address in public; instead he had it published in local gazettes (newspapers).


Washington’s wartime experiences all the way back to the French and Indian wars made him very smart and cognizant of history’s lessons, and that sometimes a nation’s ability to exercise military power could be more important than the actual exercise of it.  For example, Washington once wrote to a friend, “You know it is an old and true Maxim that to make a good peace, you ought to be well-prepared to carry on the War.”  In this Washington recognized the timelessness of the Roman Empire’s adage, “Si vis pacem, para bellum” (If you want peace, prepare for war), which is in the third book of Publius Favius Vegetius Renatus’s De Re Militari (Concerning Military Matters).  As president, Washington did his best to keep the United States neutral during the British and French wars of the 1790’s, mostly because he believed that the United States was not ready to engage in overseas battle, and that regardless of the wars’ outcomes, all would be adverse to American interests.


Washington was a master administrator, which was hugely beneficial during the Revolutionary War and later on as President.  During the Revolutionary War Washington showed respect and deference to the Continental Congress and other civil authority, even when doing so arguably hampered his military efforts.  He was also careful to work and cooperate with the individual colonial governments and governors, writing thousands of letters and dispatches in an unprecedented effort to keep them informed and win their respect, trust, and support.


Washington, as President of the United States, continued to carefully act well-within the bounds of the new constitution and the new Congress’ laws’.[2]  He knew that his presidential acts where the constitution’s text was unclear would set the precedent for future presidents.  Thus, he worked hard to repeatedly earn Congress’ support, though the individual senators and representatives held Washington in such high esteem that they were almost always willing to support him.  At the same time, he was willing to push back against congressional encroachment upon the president’s constitutional powers, as in 1794 when Washington exercised “executive privilege” for his private deliberations regarding foreign affairs, something which presidents in the modern day still do, and for which today’s courts grant the executive branch very broad discretion.


Washington was, like the other Founding Fathers, distrustful of Big Government.  For example, he wrote, “Government is not reason, it is not eloquence – it is a force!  Like fire, it is a dangerous servant and a fearful master; never for a moment should it be left to irresponsible action.”


Perhaps the above is why Washington is the only president to win the Electoral College’s unanimous approval, which he accomplished twice.


For all of Washington’s many important positions and accomplishments, perhaps the least well-known is his service as Presiding Officer of the Constitutional Convention of 1787 and his role afterwards in ratifying the Constitution.


Washington very reluctantly acceded to repeated requests that he lead the 1787 Constitutional Convention in Philadelphia to draft a new form of government.  Washington realized that his attendance might increase the chances of the Convention’s success.  He was also painfully aware of the failure of the Articles of Confederation, and thought that if the Convention failed, he might be needed as a human symbol to try and hold together the tenuous union of the new states.


In the end, Washington risked it all – his life, fortune, and reputation – to create a new framework for a new government.  He attended as a Virginia delegate, and over his protests the Convention unanimously elected him Presiding Officer on May 25, 1787.  In fact, Benjamin Franklin wrote a personal letter to Washington, saying in part that Franklin himself was “persuaded that your Presence will be of the greatest Importance to the Success of the Measure.”  Washington presided over and guided what would otherwise have been terribly acrimonious and ultimately unproductive debates.  Washington repeatedly demonstrated his wisdom, judiciousness, and practicality throughout the process.  By September 1787, Washington and other signatories saw that the document that they had before them was the absolute best on which the Convention delegates could agree, and Washington was certain that failure to ratify that document would cause the United States to fail.  The Constitution reflected much of Washington’s beliefs, particularly the need for a sufficiently strong central government to raise and maintain an army and navy, and to be responsible for national financial affairs (the young nation had much Revolutionary War debt to pay off).


Accordingly, the Constitution became the supreme law of the land on March 4, 1789, and on April 30, 1789 George Washington took the presidential oath of office in New York City’s Federal Hall.


Today’s presidential candidates and tomorrow’s presidents would do well to learn from President Washington.  They should follow Washington’s admonition that political parties must be restrained in a popularly-elected government, if only because the parties’ interests are not necessarily the nation’s interests.  They should be vigilant against usurpation of the constitution, remembering that America fought the Revolutionary War so that Americans did not have to live under its own version of King George III.  They should realize that political factions who wish to obstruct the proper and fair execution of the laws, or who wish to subvert the constitution, are really trying to take power away from the people and put it into those of the unjust and power-greedy.


And they should remember that Washington voluntarily declined certain re-election to a third presidential term, instead promptly returning to Mount Vernon with no pension, no office, and no reward except for the eternal thanks of a grateful nation.[3]  He also carefully drafted his will such that his slaves would be freed upon his death, setting an example for his fellow plantation owners and fellow southerners.


As Thomas Jefferson wrote of his sometime political rival George Washington, “He was, indeed, in every sense of the words, a wise, a good, and a great man.”



Mr. John Shu is an attorney in Newport Beach, CA and author of the Law & Public Policy column.  He worked for President George H.W. Bush and President George W. Bush, and clerked for Judge Paul Roney, U.S. Court of Appeals for the 11th Circuit and Chief Judge, Foreign Intelligence Surveillance Court of Review.



[1]           Contrary to popular myth, Washington never had wooden teeth.  By 1787 he had lost almost all of his teeth, and stuffed his resulting sunken cheeks with cotton for formal portraits.  Washington used false teeth made from cattle and hippopotamus teeth, and elephant and walrus ivory.  Undoubtedly today’s animal rights extremists would be terribly distressed about this.


[2]           Something from which our recent and future presidents could learn.

[3]           It is truly the strong and moral person who freely walks away from that kind of power and authority.

Abortion Law & Planned Parenthood

By John Shu

On June 10, 1993, President Clinton, a liberal Democrat, signed into law the 1993 National Institutes of Health Revitalization Act. Senator Ted Kennedy (D-MA), an even more liberal Democrat, sponsored the law. The law and its accompanying regulations state that human fetal tissue may be obtained from an abortion if the “attending physician” signs a written statement attesting that: (1) the doctor obtained the mother’s consent to the abortion before obtaining consent to the fetal tissue donation; (2) “no alteration of the timing, method of procedures used to terminate the pregnancy was made solely for the purposes of obtaining the tissue” (emphasis added); and (2) the “abortion was performed in accordance with applicable State law.” See, 42 U.S.C. § 289g-1.

Accordingly, if a fetus (unborn baby) is naturally presenting head-first, and an abortionist, solely for the purposes of obtaining the fetus’s intact brain or other organs, turns that fetus around so that the fetus now presents feet-first instead of head-first, that is likely a violation of federal law.

As another example, if an abortionist intentionally “crushes” or otherwise dismembers a certain part of the fetus, but not other parts, solely for the purposes of avoiding damage to the fetus’s hearts, lungs, liver, brains, or other body parts, in order to obtain those intact organs, that too is likely a violation of federal law.

If an abortionist switches among different abortion techniques solely for the purposes of obtaining fetal tissue, that too is likely a violation of federal law. For example, during the first trimester, abortionists might use “Machine Vacuum Aspiration (MVA),” which some abortionists are alleged to have referred to as the “more crunchy” method, or “Manual Aspiration (IPAS),” which some abortionists are alleged to have referred to as the “less crunchy” method. As certain abortionists are alleged to have claimed, the “less crunchy” method yields more intact fetus parts because the abortionist is able to manually control the suction syringe. This potential technique switching also raises the question of whether the mothers were properly informed as to which technique was to be used and why.

One can see that the difficulty in prosecuting these laws center around the word “solely.” What a prosecutor may believe or know is not the same as what a prosecutor can prove, and proving a person’s intent beyond a reasonable doubt is very difficult. For example, an abortionist might state any alternative reason for altering the timing or method of abortion in order to not fall under the statute.

42 U.S.C. § 289g makes it “unlawful for any person to knowingly acquire, receive, or otherwise transfer any human fetal tissue for valuable consideration if the transfer affects interstate commerce.” In plain language, buying or selling human fetal tissue is a felony, with a maximum jail term of 10 years or a maximum fine of $500,000 per incident. See, 42 U.S.C. § 289g-2.

Accordingly, abortion providers state that they receive “reimbursements” for “tissue donations” instead of “selling” human fetal tissue to companies. Allegations abound that abortion providers negotiated the “price” or “reimbursement amount” for each individual fetal organ or other body part. If the allegations are true, they may be problematic because people and organizations generally do not negotiate reimbursements, they negotiate prices. For example, if Jane Doe works for Company X and during a business trip Jane spent $1,000 on airplane fare, $300 for hotel, and $50 on meals, she would almost certainly simply submit her receipts and Company X would reimburse her for $1,350. There is no haggling or negotiation involved.

With respect to prosecuting alleged violations of 42 U.S.C. § 289g, presumably a prosecutor would want to subpoena and examine an abortion provider’s accounting records because the question of reimbursements/donations versus buying/selling of human fetal tissue also raises the question of whether accounting and tax filing improprieties occurred, all of which require proving intentional bad acts and misstatements.

18 U.S.C. § 1531, the Partial-Birth Abortion Ban Act of 2003, prohibits partial-birth abortions. The U.S. Supreme Court upheld the law in Gonzales v. Carhart, 550 U.S. 124 (2007) in a 5-4 vote, Justice Kennedy writing for the majority. The statute states that “the term ‘partial-birth abortion’ means an abortion in which the person performing the abortion – (A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and (B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.”

Abortion has long-been one of the most contentious issue in America. Both federal law and state law govern the practice and procedures of abortion. Violating these laws could result in severe criminal penalties. Prosecuting an entity or an individual for violations of these laws would almost certainly be difficult, but there are many criminal acts which prosecutors have difficulty proving beyond a reasonable doubt. The issue then becomes whether the U.S. Department of Justice or a state’s attorney general’s office has the political will to engage in such a controversy.

Mr. John Shu is an attorney in Newport Beach, CA and author of the Law & Public Policy column. He worked for President George H.W. Bush and President George W. Bush, and clerked for Judge Paul Roney, U.S. Court of Appeals for the 11th Circuit and Chief Judge, Foreign Intelligence Surveillance Court of Review.

What Will Happen After Obergefell?

by John Shu


On June 26, 2015, the U.S. Supreme Court (“SCOTUS”) decided Obergefell v. Hodges, holding that the Equal Protection and Due Process clauses of the 14th Amendment to the U.S. Constitution guaranteed same-gender marriage as a fundamental right.[1]  Justice Anthony Kennedy wrote the 5-4 majority opinion.  Beyond the right to legally marry, same-gender married couples are now entitled to all of the federal, state, county, and local governmental benefits that opposite-gender married couples have.  In terms of employment benefits, all businesses in the United States must treat same-gender and opposite-gender married couples the same.  In fact, a large number of corporations filed or signed onto amicus briefs in support of the Obergefell plaintiffs; one of their main claims was that, if SCOTUS found same-gender marriage to be a fundamental right, businesses could reduce their business costs.


In the employment context, most of the federal circuit courts of appeal would likely hold non-profit, tax-exempt institutions, including religious institutions, to the same requirements.  For example, the courts could rule that Catholic churches and Catholic schools will not be permitted to deny employment to a job candidate solely because he or she is in a same-gender marriage.


A tougher and broader question is how SCOTUS would rule in a case where its newly-found right of same-gender marriage conflicted with an enumerated First Amendment fundamental right, the Free Exercise Clause.[2]  Some would phrase the question as whether the Government (federal, state, or local) may force a citizen to act in a manner contrary to his or her sincerely-held religious beliefs.


While the Court would not likely uphold a law or regulation requiring a religious institution to perform, host, or otherwise sanctify a same-gender marriage, it is unclear as to how the Court would rule regarding a “neutral law of general applicability,” such as laws or regulations requiring businesses to serve all customers, regardless of race, religion, nationality, gender, or affectional preference.


The answer, at this point, is “Only Justice Kennedy knows for sure.”  However, the Court’s prior First Amendment jurisprudence, as muddled and confusing as it is, does lend certain clues.


For example, in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the Court held that Oregon could deny unemployment benefits to Native Americans who were fired for using peyote, an illegal drug, as part of their religious ritual, and that while states may accommodate otherwise illegal acts done as part of religious beliefs, they are not required to do so.[3]  Justice Scalia wrote the majority opinion.  The Court considered the Oregon law as a “neutral law of general applicability.”  The Court stated that the Free Exercise clause does not permit an individual to use his or her religious beliefs as reasons to disobey neutral, generally applicable laws.  Justice Scalia wrote that “The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.”  Citing Reynolds v. United States, 98 U.S. 145, 166-167 (1979), Justice Scalia further stated that “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices … To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”


Accordingly, the Court has held that religious beliefs and/or the Free Exercise clause did not excuse people from complying with laws forbidding polygamy (Reynolds v. United States (1879), Davis v. Beason, 133 U.S. 333 (1890)), child labor laws (Prince v. Massachusetts, 321 U.S. 158 (1944)), Sunday closing laws (Braunfeld v. Brown, 366 U.S. 599 (1961)), laws requiring citizens to register for Selective Service (Gillette v. United States, 401 U.S. 437, 461 (1971)), and laws requiring the payment of Social Security taxes (United States v. Lee, 455 U.S. 252 (1982)).


Comparatively, the cases where SCOTUS permitted the Free Exercise clause to exempt an individual from a neutral, generally applicable law involved the assertion of that right plus some other right.  For example, in Wisconsin v. Yoder, 406 U.S. 205 (1972), the Court held that Amish parents’ First Amendment rights plus their right to direct their children’s education, which SCOTUS determined in Pierce v. Society of Sisters, 268 U.S. 510 (1925), outweighed Wisconsin’s interest in requiring that all Wisconsin children attend school beyond eighth grade.  The Court’s key finding was that Wisconsin failed to show that the Amish children needed such schooling in order to function effectively and productively in Amish society.  Other examples include Free Exercise clause plus freedom of speech and of the press, such as Cantwell v. Connecticut, 310 U.S. 296 (1940), Murdock v. Pennsylvania, 319 U.S. 105 (1943) and Follet v. McCormick, 321 U.S. 573 (1944).

So far, the bakers, florists, and other small business owners who are litigating against fines or other punishments for refusing to serve, on Free Exercise grounds, same-gender weddings did not assert a hybrid-right argument.  The language in some of SCOTUS’ previous Free Exercise clause jurisprudence does not seem to bode well for these litigants.  For example, in the business context, Chief Justice Warren Burger wrote for an unanimous Court in United States v. Lee, stating that “Not all burdens on religion are unconstitutional … When followers of a particular sect [the Amish] enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”  In Gillette v. United States, Justice Thurgood Marshall wrote that 8-1 opinion in which he wrote that, with respect to the Free Exercise clause, “Our cases do not at their farthest reach support the proposition that a stance of conscientious opposition relieves an objector from any colliding duty fixed by a democratic government.”


Interestingly, Justice Kennedy’s Obergefell opinion avoided Reynolds and the petitioner-plaintiffs avoided comparing same-gender marriage and polygamous marriages.  Chief Justice Roberts’ dissent, however, specifically wondered why the majority found a fundamental right to same-gender marriage, but not to polygamous marriage.[1]


[1]           For example, Chief Justice Roberts wrote,  “It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage … why would there be any less dignity in the bond amongst three people who, in exercising their autonomy, seek to make the profound choice to marry?  If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” why wouldn’t the same reasoning apply to a family of three or more persons raising children?  If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?”  The Chief Justice also foretold Obergefell’s likely adverse impact on religious liberty, stating that “Most alarmingly, the majority opinion never discusses the free exercise of religion.  The majority graciously suggests that religious believers may continue to ‘advocate’ and ‘teach their views of marriage.  The First Amendment guarantees, however, the freedom to ‘exercise’ religion. Ominously, that is not a word the majority uses.”


SCOTUS, in Reynolds, upheld Congress’ prohibition on bigamous and polygamous marriages in the Territory of Utah, despite the Mormon Church’s then-belief in such marriages.  Mr. Reynolds had argued that as a Mormon, it was his sincere religious belief and religious duty as a male member of the church to practice polygamy if possible.  Chief Justice Waite, writing for the full Court, stated

that “A party’s religious belief cannot be accepted as a justification for his committing an overt act, made criminal by the law of the land.”  He also wrote that

“Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices … So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed.”[1]


The Court furthered Reynolds in Davis v. Beason, 133 U.S. 333 (1890), which again denied Free Exercise clause exemption from laws criminalizing polygamy and which made those convicted of polygamy felons without the right to vote.  Justice Field, for the Court, wrote that, with respect to polygamy, “Few crimes are more pernicious to the best interests of society, and receive more general or more deserved punishment.”  He echoed Reynolds when he wrote that “However free the exercise of religion may be, it must be subordinate to the criminal laws of the country,” or else the individuals would face “swift punishment.”[2]


Like RFRA and RLUIPA, Congress has the power, if it chooses to exercise that power, to respond to Obergefell with respect to religious liberty protection.  For example, in 2013 Congressman Raul Labrador (R-ID) and Senator Mike Lee (R-UT), perhaps anticipating Obergefell, introduced the “Marriage and Religious Freedom Act.”[3]  The bill would have prevented the federal government from taking adverse actions against groups which believe in the traditional definition of marriage, but it went nowhere.  On June 17, 2015, Congressman Labrador and Senator Lee introduced the First Amendment Defense Act,[1] which states that the government may not discriminate against people and institutions which speak and act according to their belief that marriage is a union of one man and one woman.  In order to become law before January 20, 2017, however, President Obama would have to sign it, which he is unlikely to do, just like the rest of the current Democrat candidates running for president.


[1]           H.R. 2802 and S. 1598, respectively.  Both bills are still stuck in committee.

[1]           Chief Justice Waite further noted that “Polygamy has always been odious … and from the earliest history of England, polygamy has been treated as an offence against society … By the statute of 1 James I (c. 11), the offence, if committed in England or Wales, was made punishable in the civil courts, and the penalty was death … From that day to this, we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity.  In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life.  Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law.  Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties with which government is necessarily required to deal.  In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests.”

[2]           Justice Field also wrote that “Probably never before in the history of this country has it been seriously contended that the whole punitive power of the government for acts, recognized by the general consent of the Christian world in modern times as proper matters for prohibitory legislation, must be suspended in order that the tenets of a religious sect [the Mormon Church] encouraging crime [polygamous marriage] may be carried out without hindrance.”

[3]           H.R. 3133 and S. 1808, respectively.  Interestingly, both Congressman Labrador and Senator Lee are Mormons.


Mr. John Shu is an attorney in Newport Beach, CA and author of the Law & Public Policy column.  He worked for President George H.W. Bush and President George W. Bush, and clerked for Judge Paul Roney, U.S. Court of Appeals for the 11th Circuit and Chief Judge, Foreign Intelligence Surveillance Court of Review.



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Briefings, Annual Christmas Event, Monthly Luncheons



Includes: Chairman’s Annual Insiders Reception, Candidate Receptions & Briefings, Annual Christmas Event, Monthly Luncheons

Elected Officials & Non-Profit CEOs can join at this level for a special rate of $250



Includes: Candidate Receptions & Briefings, Annual Christmas Event, Monthly Luncheons



Includes: Annual Christmas Event, special Member rate for Monthly Luncheons and Special Events.

Member rate for monthly luncheons is $35. 

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California's Charter Schools: A Primer

by John Shu

In 1992, California became the second state to permit charter schools.  A charter school is a public school which provides K-12 instruction.  They are therefore at least partially government funded.  Students choose to enroll in a charter school.  Charter schools may serve students from adjacent counties.  The California Charter Schools Act, California Education Code (CEC) § 47600 et seq., is the primary state legislative series governing charter schools.  For example, § 47610 exempts charter schools from most of the state statutes and regulations which apply to school districts.  Charter schools, however, still must comply with federal requirements, such as, but not limited to, the Individuals with Disabilities Education Improvement Act, the Americans with Disabilities Act, § 504 of the Rehabilitation Act, the No Child Left Behind Act of 2001, and any requirements that are a condition of receiving federal funding.

Parents, teachers, or community members may start a charter school by initiating a charter petition, which a local school district governing board must approve.  In certain circumstances, county boards of education and the State Board of Education may authorize charter schools.  The charter agreement between the charter developer and the government entity authorizing the charter details the school’s specific goals and operating procedures.  Charter schools which successfully complete an accreditation process, such as that of the Western Association of Schools and Colleges, receive accreditation.

Charter schools are popular in California, which leads the nation in both the actual number of charter schools as well as the rate of growth of charter schools.  Just under 10% of California’s public schools are charter schools.  The actual number of charter schools changes often due to frequent closures and openings.

Charter schools are different from magnet schools and private schools.  Students and parents should be aware that traditional public high schools or private high schools may refuse to accept credits from students transferring from a charter school.  CEC §§ 47605, 47605(b)(5)(A)(ii).  Charter schools often do not receive the same level of resources and facilities access that traditional district public schools do.  Charter schools, because they are considered public schools, may teach about religion, but may not teach a sectarian curriculum, such as that of a Catholic school, for example.  CEC § 47605(d).

In 2010 California became the first state to pass a “parent trigger law.”  CEC §§  48350 et seq., 53300 et seq.  California parents who are dissatisfied with a poorly performing public school, as defined under CEC § 53201, may petition to take one of four options:  (1) convert the school into a charter school, (2) replace the staff and make budget decisions, (3) dismiss the principal and other senior staff, or (4) dissolve the school and relocate the students to other schools.  California Code of Regulations, Title 5, § 4801.  At least half of the school’s parents or legal guardians must sign the petition in order for it to become effective, at which time the school district must implement the chosen option.  CEC § 53200 et seq.

The parent trigger process is lengthy, difficult, litigious, and controversial.  It has only been done a few times in California.  Moreover, the teachers’ unions, the National Association of Secondary School Principals, and other similar special interest groups strongly oppose parent trigger laws and any action taken under those laws.

These special interest groups and unions, generally speaking, also oppose charter schools.  For example, in 2011 the California teachers’ unions pushed a bill which would have put a hard limit on the number of charter schools in California.  While it did not pass, the teacher’s unions are certainly able to try again.

So long as California does not allow vouchers or public scholarships for kids to attend private schools, parents will continue to demand charter schools.  California’s resistance to school vouchers is political, in that teachers’ and administrators’ unions and their political allies (who are almost always Democrats) are against vouchers, as well as legal.  For example, California Constitution Article IX, § 8 and Article XVI, § 5, along with the accompanying caselaw, very strictly limits what public monies may go towards educating outside the public school system.  Thus, charter schools are a way for parents to achieve the accountability and flexibility in staffing, budgeting, curriculum, and standards that they desire.  At the same time, parents and school districts must work together to ensure that charter schools receive the funding and facilities access that they need and deserve.

John Shu is an attorney and author of the Law & Public Policy Column.  Mr. Shu served both President George H.W. Bush and President George W. Bush, and clerked for Judge Paul H. Roney, U.S. Court of Appeals for the Eleventh Circuit.

Cuba: Congress vs. The President

By John Shu

In December 2014, President Obama announced that he would take executive action to significantly ease the U.S. embargo on Cuba.  The embargo’s supporters and opponents reacted swiftly and loudly.  Those concerned about President Obama’s constitutional overreach also reacted swiftly, although, in the national media discussions, the politics and policy issues generally drowned out the constitutional questions.  This article will more closely examine the constitutional questions of whether President Obama had the authority to take December’s action.

A Congressional lawsuit against the Office of the President claiming executive branch overreach with respect to the Cuba embargo would end up in the U.S. Supreme Court.  The Court’s current composition, the current statutory structure, and the existing caselaw on executive branch authority with respect to foreign affairs / international relations all indicate that the Court would likely find that the President has very wide latitude on the scope, execution, and enforcement of the Cuba embargo, so long as the executive branch remained within constitutional and statutory limits.

President Kennedy started the formal embargo in February 1962 as an executive branch action in accordance with the Trading With The Enemy Act of 1917 (“TWEA”) and the Emergency Banking Relief Act of 1933 (“EBRA”).  TWEA gave the President the authority to oversee and/or restrict any and all trade between the U.S. and hostile countries during wartime.  EBRA extended the President’s authority to include any declared national emergency, not just those during wartime.  The Office of Foreign Assets Control (“OFAC”) of the U.S. Department of the Treasury has been and still is the executive branch agency responsible for administering and enforcing sanctions, including the Cuba embargo (see, e.g., Cuban Assets Control Regulations, 31 C.F.R. Part 515).  President Truman created OFAC in December 1950; China entered the Korean War and President Truman blocked all Chinese and North Korean assets subject to U.S. jurisdiction.

In 1996, President Clinton signed the Helms-Burton Act into law.  Helms-Burton, among other things, essentially codified the Cuba embargo as it was in 1996, strengthened international sanctions against Cuba, and provided for a program of incentives to promote open democracy in Cuba.  OFAC still retained administrative authority over the embargo, but within Helms-Burton’s broad and sometimes unclear framework.

Thus, the key question is whether President Obama’s planned easing of the embargo is consistent with Helms-Burton.  OFAC has not yet finished all of the new language in the Code of Federal Regulations; thus, the answer cannot be known at this point.  While Helms-Burton prevents President Obama from unilaterally lifting the embargo completely, the Court has made clear that the President has certain plenary powers, independent of Congress, in the conduct of the nation’s foreign affairs.  United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).  The President’s authority is much less likely to be questioned when he acts pursuant to explicit Congressional legislation, compared to acting at odds with Congress (usually meaning already-existing legislation).  Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).  Even so, the Court is more likely to give deference to the President in foreign affairs than domestic affairs.  Regan v. Wald, 468 U.S. 222 (1984).  See also, Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548 (1976) and Dames & Moore v. Regan, 453 U.S. 654 (1981).  In Dames & Moore, the Court gave particular deference to the executive branch despite no specific statutory authorization, and the Court made special note of the long history of Congressional acquiescence with regard to executive activity in foreign affairs.

The Court’s current approach to foreign affairs legislative analysis is that it will not infer a Congressional limit on presidential authority unless the statute’s language and legislative history clearly indicate that.  In fact, the caselaw hints that the Court will very likely presume Congressional acquiescence or concurrence in the executive branch’s foreign affairs policy unless Congress explicitly declares otherwise.  The biggest problem for this Congress with respect to any new bills on the Cuba embargo is that President Obama will veto any bills which go against his foreign affairs policy, and the Republicans do not have veto-proof supermajorities in the House and Senate.

President Obama twice eased travel restrictions to Cuba in 2009 and 2011.  Further travel restriction is unlikely to violate Helms-Burton, especially because tourism probably will not be generally licensed, although Americans will probably be able to obtain travel licenses for photography, yoga, ornithology, et cetera.  The President’s proposed plan to permit Americans to bring back from Cuba $400 worth of goods, with a maximum of $100 worth consisting of alcohol and tobacco, is also unlikely to violate Helms-Burton because such small individual amounts would not be considered imports for sale.  The President’s plan to permit American travelers to Cuba to use their credit and debit cards may be problematic because Cuba’s banks have not met disclosure standards that U.S. banks and already-existing U.S. law require.

The 114th Congress will not be completely helpless on the Cuba issue.  For example, the Congress may choose to not provide funding for an American embassy in Cuba.  It may also choose to insert policy riders in upcoming budget and appropriations bills.  Congress could also choose to increase funding of TV and Radio Martí to Cuba, increase funding to Naval Station Guantánamo Bay, and increase covert funding for democracy promotion programs in Cuba.  The Senate, acting alone, could choose to either reject or not even hold hearings for anyone President Obama nominates to be U.S. Ambassador to Cuba, and reject proposed treaties regarding Cuba that it does not like.

Additionally, Congress should seriously consider laying a clear legislative history for a future Supreme Court case regarding the Cuba embargo.  Congress may choose to pass legislation which further tightens Helms-Burton and very clearly lays out the President’s specific authorities in administering the embargo.  Although President Obama would veto the bill(s), it would show Congress’ intent.

Battles between Congress and the President are more political than legal, and the Cuba embargo is no different.  Congress has an inherent disadvantage in that 435 House members, 100 Senators, and one Vice-President act much more slowly and diffusely than one President.  It will come to depend on the strength of Congressional will.


John Shu is an attorney and U.S. Supreme Court expert and author of the Law & Public Policy Column.  Mr. Shu served both President George H.W. Bush and President George W. Bush, and clerked for Judge Paul H. Roney, U.S. Court of Appeals for the Eleventh Circuit.