By: James Simpson — cross-posted with permission from the author
With “same-sex marriage” proponents winning victory after victory, free-speech rights under attack, the Constitution daily ignored by the Obama administration and fearsome agencies like the IRS, NSA and Justice Department turned against the American people, there’s precious little news these days of victories for the common man, for liberty, for fundamental rights.
And yet, there are important legal victories taking place, many under the national news radar but highly significant nevertheless.
Just ask the residents of Carroll County, Maryland.
The First Amendment
In recent decades, atheists have aggressively sought to extinguish all vestiges of Christianity from public life, citing the familiar but incorrect idea that the Constitution calls for the “separation of church and state.” Christmas trees now are “holiday” trees, kids get a “winter” break, and Nativity scenes and other traditional Christian displays have disappeared from the public square.
Among the issues are protests of Christian symbols on public grounds, threats against Christians in the military for publicly expressing their views and anti-Christian crusader Mikey Weinstein‘s pronouncement, “We are at war with a subset of evangelical Christianity … how many? Roughly 12.6 percent of the American public or 38 million people.”
But Carroll County, Maryland, Commissioner Robin Frazier made national news recently when she defied a court order banning the name “Jesus” in pre-meeting prayers.
“I think that is an infringement on my First Amendment rights,” she said. “I am not going to give up those rights. … I am willing to go to jail over it.”
She then proceeded to recite a prayer spoken by George Washington that specifically mentioned Jesus Christ twice.
The Supreme Court said she was right. In the landmark May 5 Greece v. Galloway decision, a case pitting the Greece, New York, town board against citizens who protested “sectarian” prayers in public meetings, Justice Anthony Kennedy wrote for the majority:
To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact.
Carroll County was among numerous local governments sued for initiating meetings with prayer. The National Center for Life and Liberty filed a friend-of-the-court brief in the Greece case on behalf of Carroll County; Cobb County, Georgia; Rowan County, North Carolina; Lakeland, Florida; Franklin County, Missouri; Forsyth County, North Carolina; Hamilton County, Tennessee; and Franklin, Vermont. There were many more.
In 2013, Maryland Gov. Martin O’Malley signed into law the Maryland Firearms Safety Act, or MFSA, over the objections of Maryland gun owners. The law requires an exhaustive procedure for handgun purchases and bans some so-called “assault” firearms and high-capacity magazines.
Senate hearings on the bill brought an unprecedented 2,644 people to testify against it, while thousands more rallied outside. A few witnesses hand-picked by the governor testified in favor of the bill. The Democratic Party leadership also stirred outrage when it called for a second vote after a Republican-proposed amendment won with support of some Democrats. After those Democrats were taken aside, they subsequently switched their votes, and the Republican amendment was defeated.
See the action:
Once again, Carroll County stepped in. Commissioner Richard Rothschild, the most outspoken board member, proposed that the board use “nullification” to neutralize the gun law in Carroll County. A law is nullified when a jury or elected officials declare a law to be invalid because it includes provisions reasonably deemed to be unconstitutional. The Maryland Firearms Safety Act is considered by some to be one such law.
Progressives have been practicing their own form of nullification for years, for example, by supporting and promoting illegal immigration. O’Malley has created a de facto “sanctuary state” for illegals in Maryland by not enforcing existing laws, at a cost to Maryland taxpayers of about $1.7 billion annually.
President Obama also defied federal law by halting deportations of illegal aliens, even allowing the release of over 36,000 criminal aliens, including 193 murderers.
Rothschild decided that if the left can defy laws illegally, it was high time conservatives began doing it legally – targeting onerous laws that violate the highest law of the land, the Constitution.
Thus Rothschild and the Carroll County Commissioners passed a “Second Amendment Sanctuary County” Resolution. It declares the MFSA to be unequivocally unconstitutional and hence unenforceable:
The board reasonably believes the MFSA to be “pretended” (unconstitutional) legislation and be it further resolved that the board, in affirmation of the Second Amendment rights of the citizens of Carroll County, herein direct that Carroll County government will not authorize or appropriate government funds, resources, employees, agencies, contractors, buildings, detention centers or offices for the purpose of enforcing any element of the MFSA that infringes on the right of the people to keep and bear arms …
The resolution explains that no county resources will be used to administer or enforce the new law, including the sheriff and state’s attorney, unless it is coincident with other illegal activity. The resolution contains a number of stirring quotes from America’s Founding Fathers, including this from Thomas Jefferson:
Whenever our affairs go obviously wrong, the good sense of the people will interpose and set them to rights. … What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance?
Rothschild also made news nationwide three years ago by leading the Carroll County commissioners in the battle to expunge Agenda 21 planning programs from the county.
He explained it in terms everyone could understand: as an existential threat to property rights. He was subsequently asked to speak all across the country. He even joined the stage with outspoken Agenda 21 critic, Lord Christopher Monckton.
Local activists nationwide picked up the baton and ran with it, resulting in widespread rejection of Agenda 21 concepts in many municipalities and even some state legislatures.
Meanwhile, up north, citizens in New York and Connecticut have been demonstrating their own “spirit of resistance” against new gun laws. As many as 90 percent of New York gun owners and tens of thousands of Connecticut gun owners have refused to register firearms as required by recently enacted laws. Connecticut gun rights groups have already gone to court once to challenge the Connecticut law, and are now doing so again.
The state is in turmoil in the face of this resistance.
Then, too, Coloradans threw out of office two of the state senators responsible for Colorado’s restrictive new gun laws. A third, Evie Hudak, resigned rather than face recall. Hudak earned particular ire in Senate gun hearings when she told a rape victim that self-defense with a handgun was futile.
“Chances are that if you would have had a gun, then [the rapist] would have been able to get that from you and possibly use it against you,” she said.
Using the law
Back to Carroll County, which used another little-known method to resist Maryland’s infamous “rain tax.”
Properly called a “storm water runoff fee,” the tax was enacted ostensibly to meet EPA-mandated Chesapeake Bay pollution targets. Maryland already has a “Bay Restoration Fee” that repeatedly has been raided by O’Malley to pay for other priorities, so there is little confidence the new fee will address the problem either.
But many citizens are unaware of a process called “coordination” that requires federal agencies to negotiate and compromise with state and local governments in implementing regulations. Coordination is embedded in the following laws:
- National Environmental Policy Act
- Federal Unfunded Mandates Reform Act
- Federal Land Policy and Management Act
- National Forest Management Act
- Endangered Species Act
- Clean Water Act
- Clean Air Act
In the Maryland case, Carroll County is further protected by a court ruling that the EPA cannot regulate storm water runoff as a pollutant under the Clean Water Act.
When the O’Malley administration proposed the rain tax, Carroll County had already been collecting revenues to pay for storm water management (less than 1 percent of the operating budget). The county objected to the new tax and refused to implement it.
The state backed down. No taxes have been increased. Frederick County, Maryland, reached a similar compromise, agreeing to collect a one-penny tax.
Many of these laws contain provisions that state and local governments use to resist federal overreach. For example, the Federal Unfunded Mandates Reform Act, passed in 1995 under a Republican Congress, was enacted to prevent the federal government from imposing mandates on state and local governments without providing adequate funding. The law applies to all regulations that could “significantly or uniquely affect small governments.”
There are other victories, too.
Judge Roy Moore, who was removed from his position as Alabama Supreme Court Chief Justice in 2003 for refusing to remove a Ten Commandments monument from state property, was re-elected as chief justice in 2012.
In February, the Alabama House passed a bill that would put a referendum to the public to decide whether or not to amend Alabama’s Constitution to allow the Ten Commandments to be displayed in public buildings. The bill is now before the state Senate.
And atheists took another hit May 9, when the Massachusetts Supreme Judicial Court ruled that the phrase “under God” in the Pledge of Allegiance is indeed constitutional.