Peter v. Atlasia

[Peter]

In principle, I should be able to post a case by Monday, but that does rely on external powers getting their collective acts together and doing what I pay them for. I do apologise to the Court for these delays, as I had expected my offline status to have been resolved earlier this week.

[Sam Spade]

Ok, well then we'll postpone your brief until Monday, which means Jesus has until Thursday.

Of course, if this goes much longer, we may end up posting a decision before you post your arguments. 

[Peter]

Statement of Facts

On 27 July 2009, President Lief signed into Law the LGB Dignity Act, which had passed the Senate by a vote of 8-1. The Act is quoted in full below

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Questions Presented
1. That the LGB Dignity Act is not authorised by any power enumerated to the Federal Government in the Constitution.
2. That the LGB Dignity Act is prohibited by the Constitution's protection of speech

Argument

I

The Act in question makes it illegal for any "ex gay" institutions to allow any person under 18 to attend their institution to change their sexual orientation. Whilst no actual punishments are specified, it may be assumed that the intention of the Senate is that the institution, and not the under 18, would be punished.

The effect of the bill is to regulate the institutions in a way that is not authorised by the Constitution. Looking through Article I, Section 5, where most of the federal powers are enumerated, one cannot see any stand out clause which authorises the bill, and the one candidate that there is can be shown to be insuffiicient, and no other power under the Constitution is sufficient either.

One might argue that the Law is authorised by Clause 7: "To provide for the Punishment of Fraud in a uniform manner throughout the Republic of Atlasia ", however, the Law barely addresses any suggestion that fraud is being committed - at common law, a conviction for fraud is reliant on the fact that the defrauded person is ignorant of the falsity he is subject to. There is no suggestion anywhere in the act that the institution must be dishonest in some way, or that an institution has not made it clear that suppression of sexual orientation will not necessarily be successful. Certainly any insitution that was operating dishonestly would already be subject to the Fraud laws in the Republic of Atlasia and its Regions.

II

The bill began life in the Senate as a bill that banned all ex-gay institutions, but this was seen by many as not constitutionally or politically palatable because of the restrictions it placed on speech and/or religion. The bill was the amended to its present form of banning ex-gay institutions from targetting under-18s. Whilst this may make the bill more politically palatable to some, there is no constitutional reason why it should be more palatable.

Article VI, Clause 1 states that "No agency of government shall make any law [..] abridging the freedom of speech [...]". It is an abridgement of the freedom of speech of all those under 18 for them to have their access to a service restricted that it is available for those over 18 without any justification. Whilst children can be subjected to enhanced restrictions on their speech, the fact that they are children does not automatically wash away all of their rights and protections, and therefore justifications for this enhanced restriction must be given. We may not approve of a child's speech in wanting this choice, but we must nonetheless respect it because the speech does no harm to any other nor does it meet the requirements of the other exceptions to the free speech clause crafted by this and other courts.

Conclusion
Ex-gay institutions cannot be outright banned from operating with particular age groups under the enumerated powers, and even if the Court can be convinced by respondent that such a clause does exist, then the speech of the child is protected by the Free Speech clause.

On a personal note, may I thank the Court and other parties for their patience over the last week during my internet troubles.

[Sam Spade]

For both the government and the Petitioner (and anyone else who wants to address it):

The Act in question makes it illegal for any "ex gay" institutions to allow any person under 18 to attend their institution to change their sexual orientation. Whilst no actual punishments are specified, it may be assumed that the intention of the Senate is that the institution, and not the under 18, would be punished.

Just from reading the legislation, it appears to me that the plain language of the Act only forbids persons under 18 from "attending" such institutions.  While an argument could be made that persons under 18 could be punished for attendance at such institutions through accompanying regulations, I fail to see anything in the legislation which could allow for punishment to the institution itself or could allow any attempts to "ban" or "shut down" such institutions.

I understand that:
1) There may be contrary intent in the legislative debate as to interpretation of the mandate of the legislation;
2) The introductory language professes a belief that "repression of sexual orientation" is a "reprehensible action" which indicates a general negative attitude towards such institutions that practice it; and
3) Perhaps there is more to the legislation itself, such as a definitional section, that would define the word "attend" differently than normal.

But I am finding it hard to understand how the definition of "attend" in this legislation is something other than "to be present at" and that the legislation does not simply ban those under 18 years old from being "present at" these institutions.

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Once again, that may be Senate's stated purpose, but the plain language of the Act does not appear to forbid ex-gay institutions from targetting under 18 year olds, rather it forbids under-18 year olds from attending ex-gay institutions.  While there may or may not be any difference concerning the constitutionality of either legislation, there is a great difference in terms of application and potential punishment.  Don't get me wrong, I am not trying be obstinate (that much), rather I am merely looking for reasons to interpret the language of the Act in the way Petitioner seems to be interpreting it, which appears to be completely contrary to an ordinary reading of the legislation.

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This part of your argument appears to interpret the legislation in the manner that I proposed above (forbids children under 18 from attending these institutions).  Which leaves me confused.

[bullmoose88]

One question which may lead to more,

Do you think there's a right, a privacy right, that allows parents to direct the upbringing of their children?  Can the state ever step in and say, we know more than you in this regard, or we respect your general right to raise your child but certain practices go too far?

[opebo]

Two link the two questions posed above by my learned colleagues - is this ban more analogous to the exclusion of these same under-18s from bars, or is it more analogous to the prohibition against certain levels of severity of beatings of progeny by parents?

[Peter]

[snip]

Justice Sam Spade,

I would agree that the statute is clumisly worded. I would have to contend that the only reasonable reading of the legislation is that it restricts the operations of the institution in line with the preamblatory section and the debate on the legislation.

I begin to appear to read the legislation as you suggest in my second section not because I am convinced that your reading is the right one, but because it is my argument that if the government has a power to restrict the activities of ex-gay institutions in this manner, then a collateral impact of this would be to unconstitutionally restrict the speech of under 18s, something I feel would mean the original regulation of the institution could not stand.

If we read the legislation as you suggest, that is to say, a prohibition on the activities of the under 18s then I feel that we must jump immediately to my second argument and declare that this is an impermissible restriction on the speech of under 18s.

One question which may lead to more,

Do you think there's a right, a privacy right, that allows parents to direct the upbringing of their children?  Can the state ever step in and say, we know more than you in this regard, or we respect your general right to raise your child but certain practices go too far?

Mr Chief Justice,

I don't think that this case need address a parental privacy right, there is no mention of parental rights or parental pressure on children in the statute. Whilst certainly, I would suggest that parental consent would be necessary for any child attending such an institution, I would submit that this act in no way assumes a motive on the part of parents.

Two link the two questions posed above by my learned colleagues - is this ban more analogous to the exclusion of these same under-18s from bars, or is it more analogous to the prohibition against certain levels of severity of beatings of progeny by parents?

Justice opebo,

Again, I would suggest that this ban does not assume any motive on the part of the parents, and so I would have to submit the former, but rather than seeing it as analagous to banning under 18s from bars, I view it as banning bars from recruiting the under-18s. (Although obviously the analogy has the alcohol issue which does muddy the comparison somewhat).

[bullmoose88]

While the act does not explicitly mention parents or guardians or such, don't you think that a prohibition, without exception, on sub-18 year olds attending or visiting these "institutions" would necessarily infringe upon the right of a parent to guide and direct their child's upbringing?  I mean, supposing some parents wanted their children, for one reason or another, to be exposed to these ideas...wouldn't the statute interfere with that parental right?

Or do you believe that such a right does not exist? Or if it exists, is not fundamental?

[opebo]

Two link the two questions posed above by my learned colleagues - is this ban more analogous to the exclusion of these same under-18s from bars, or is it more analogous to the prohibition against certain levels of severity of beatings of progeny by parents?

Justice opebo,

Again, I would suggest that this ban does not assume any motive on the part of the parents, and so I would have to submit the former, but rather than seeing it as analagous to banning under 18s from bars, I view it as banning bars from recruiting the under-18s. (Although obviously the analogy has the alcohol issue which does muddy the comparison somewhat).

How is motive relevant to the first analogy I suggested, Peter?

[Sam Spade]

bump for the government - your brief is due today.

[bgwah]

Article I, Section 5, Clause 13 of the Atlasian Constitution grants the Senate the ability to promote the public health of Atlasia including the treatment of any mental disorders. Clause 30 of the same section grants the Atlasian government the ability to define specifically what may or may not be considered a mental disorder, as it is both necessary and proper for guidelines to be in place concerning what may be defined as a health disorder before public health can indeed be promoted as specified in Clause 13.

Homosexuality is thus not recognized as a mental disorder in any fashion. These “ex gay” institutions, however, claim to treat homosexuality as a disorder, even though it is not recognized as such by either the government or the scientific community. Claiming to treat a disorder which does not exist is a fraudulent practice, thus the Senate has the ability to enforce the LGB Dignity Act under Article I, Section 5, Clause 7 of the Constitution.

Even without considering the Senate’s ability to ensure the public health, the practice of “healing” gays still falls under the definition of fraud, as these institutions claim to “cure” homosexuals of their sexual preference when in fact there is no scientific evidence that this can occur.

There is also no violation of Article VI, Clause 1 guarantee against the abridgment of free speech, as the age restriction of the LGB Dignity Act is analogous the government restricting minors from signing a binding contract or smoking tobacco- actions a minor is restricted from legally taking before they have the requisite maturity to decide for themselves. It is thus entirely legal for the government to place an age restriction on entry to "ex-gay" facilities, especially considering that at that young age the potential psychological damage from attending these institutions is most severe.

[Peter]

While the act does not explicitly mention parents or guardians or such, don't you think that a prohibition, without exception, on sub-18 year olds attending or visiting these "institutions" would necessarily infringe upon the right of a parent to guide and direct their child's upbringing?  I mean, supposing some parents wanted their children, for one reason or another, to be exposed to these ideas...wouldn't the statute interfere with that parental right?

Or do you believe that such a right does not exist? Or if it exists, is not fundamental?

Mr Chief Justice,

The right of parents to guide and direct their children exists insofar as all rights "exist" in a metaphysical sense, however, this right is not listed in Article VI, and I think for the Court to conclude that the right was protected under the Constitution would need a strong showing that the right was historically respected. I can certainly believe that this particular right would fall within that scope, but I shall leave that for the Court to decide. To re-iterate, the right of speech for the child is a protected right under the Constitution and I feel if a rights argument is needed then the Court would do best to put its attentions there.
Justice Opebo,

Motive is massively relevant in your analogy - you are setting up the situation as either the child wanting to attend the institution or the parents forcing the child to attend the institution. The act does not mention the former at all.
In response to respondent's arguments - I have already addressed the use of the Fraud clause in my initial arguments.

[bullmoose88]

I'll ask the attorney general the same questions i posed to plaintiff

Mr. AG,

Do you think parents have the fundamental right to direct the upbringing of their minor children?  I mean the schools they attend, the moral and/or religious education they receive, cultural education etc?

If there is a right, fundamental or otherwise, when is it appropriate for the government to come in and say, we disagree with your direction, you cant teach the kid this...be it intelligent design etc?

And how do you reconcile that with the bill?

Or if you do not believe there is such a privacy right, why does it not exist?

[opebo]

Justice Opebo,

Motive is massively relevant in your analogy - you are setting up the situation as either the child wanting to attend the institution or the parents forcing the child to attend the institution. The act does not mention the former at all.

Ah, I see the confusion.  I thought you were referring to the motives of the parents.

[bgwah]

I'll ask the attorney general the same questions i posed to plaintiff

Mr. AG,

Do you think parents have the fundamental right to direct the upbringing of their minor children?  I mean the schools they attend, the moral and/or religious education they receive, cultural education etc?

If there is a right, fundamental or otherwise, when is it appropriate for the government to come in and say, we disagree with your direction, you cant teach the kid this...be it intelligent design etc?

And how do you reconcile that with the bill?

Or if you do not believe there is such a privacy right, why does it not exist?

For the most part, yes that right exists. But I think that there is a line that, if they cross it, the government can interfere. I believe the government is allowed to step in if what the parents do causes harm to their children, whether it be physical or psychological. A physical example might be the beating or rape of a child. Our case here, interfering with the natural sexuality of a person, can cause much long-lasting (if not permanent) psychological harm.

[Sam Spade]

While it is possible that the other justices have other questions, I am personally done with inquiries.

We are working on a decision, but I wouldn't expect anything Monday at the earliest and the more likely answer is probably middle to the end of next week.

[bullmoose88]

The Court has reached an opinion, it is in final review...when ready, Justice Spade will read it from the bench.

[Sam Spade]

Sorry, meant to do this last night, but it'll be up in a moment.

[Sam Spade]

Justice Sam Spade delivered the opinion of the Court, in which Chief Justice Bullmoose88 joined.

Introduction

On July 27, 2009, the Senate passed, by a vote of 8-1 in favor, and President Lief signed the LGB Dignity Act, F.L. 32-7, which reads as follows:

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As shall be explained below, the Court finds this Act in violation of the Constitution because:

(i) The Senate lacks power under Article I, Section 5 to forbid persons below the age of eighteen from attending a collection of organizations that we will describe as “ex-gay institutions” or forbid parents from making the decision;
(ii) The Act violates the minor’s right to freedom of association found in the right to freedom of speech;
(iii) The Act violates a parent’s fundamental right to direct the upbringing and education of his children in the manner he sees fit.

Part I

However, before we reach our ruling on the Act’s constitutionality, the Court must first define the Act and its parameters.  Both Petitioner and Respondent presented numerous versions of the Act’s true meaning at oral argument and lack of a clear view as to the statutory language could lead to confusion as to its constitutionality.

We think the plain language of the Act is quite clear and much narrower than was assumed during oral argument. 

Initially, the Court believes the first section of the Act constitutes a preamble.  This preamble states that “the attempted repression of sexual orientation” is “reprehensible” and that “attempted repression” can be compared favorably with “discriminatory behavior” which is “deemed illegal” in Atlasia.  Ignoring, for this case, the question of whether such discrimination is actually illegal in Atlasia, we would define this language as an “assertion”, “suggestion”, or a “statement of a government purpose.”  However, such assertions, suggestions or statements of government purpose by the Senate are insufficient to create a statutory mandate.  To create a statutory mandate, we think that the Senate must employ words of implementation or enforcement consistent with Constitutional guidelines.  In sum, mere “precatory” language, such as that contained in the first section of the Act, is insufficient to exercise a power held by Senate.

The second section of the Act, however, does employ words of implementation or enforcement.  This provision declares an assortment of organizations, which the Court (to simplify things) would characterize as “ex-gay institutions”, that intend to “influence” a person’s sexual orientation “may not be attended by persons below the age of eighteen.”  It is important for us to note the narrow reach of the statutory language.  The Act does not, for example, prohibit persons above the age of eighteen from attending ex-gay institutions.  Nor does it prohibit the formation of ex-gay institutions or even forbid ex-gay institutions from catering services to those under the age of 18.  If the Senate had wished to stop such activity, it would have made its intentions explicit in the text of the Act itself.

Rather, the Court thinks that the Act merely forbids persons under 18 from attending ex-gay institutions.  According to Webster’s Dictionary, the word “attend” is properly defined as “to be present at” or “to go to.”  As such, we deem the word “attend” to cover any purposeful entrance onto the physical grounds of an ex-gay institution or purposeful contact with a person belonging to or associated with an ex-gay institution to obtain information or materials relating to its stated goals.  However, we do not find that the term “attend” covers the mere possession of the above-stated information or materials, the purposeful receipt of such information and materials from persons not belonging to or associated with an ex-gay institution, with the notable exception of parents as addressed below, or any unintentional entrance onto the physical grounds of an ex-gay institution.

The Court’s interpretation of the text, in addition to the plain language of the statute, is guided by the development of the Act before passage.  The original text of the Act would have completely banned “ex-gay institutions.”  Out of concern that such a blanket ban would be unconstitutional, the Senate passed an amendment which contained the present text of the Act.  Both the proponents of the original legislation and those Senators concerned with its constitutionality found this amendment palatable because one of the stated purposes in Senate debate for the Act was to “forbid parents from sending their children to these programs (i.e. ex-gay institutions).”  Therefore, we believe the plain text of the Act and the Senate’s intentions align on this point: the Senate placed emphasis of regulation on the parent/child side of the equation as opposed to the ex-gay institution side because of concerns over constitutionality.

Finally, although the Court does recognize that parents have an important relationship to minors defined under the law, we think it irrational to conclude that persons under 18 cannot act for themselves and choose to attend or not attend such institutions on their own volition, regardless of their parents’ wishes, in certain situations.  However, given the Senate’s stated purpose to “forbid parents from sending their children to [ex-gay institutions]” and the Senate’s general suggestion that “attempted repression of sexual orientation” is “reprehensible”, we find that the Act does create parental liability for a minor child’s “attendance” at an ex-gay institution, regardless of whether the parent has intentionally made the minor child attend to an applicable institution or the minor child has purposefully attended the institution through his own volition. 

On the other hand, the Court holds that ex-gay institutions are not liable under the Act for the “attendance” of minors at their institutions.  “Attendance” at an ex-gay institution may be defined as the result of either one of two actions:  The minor child’s parents intentionally make him attend an ex-gay institution or the minor freely chooses to attend an ex-gay institution himself. 

The Court does acknowledge that one of stated purposes in Senate debate on final text of the Amendment which became the LGB Dignity Act was to “forbid ex-gay institutions from targeting children under the age of 18.”  However, regardless of whether such “targeting” occurs, the choice to attend the ex-gay institution, absent punishable criminal behavior such as kidnapping, must still freely reside with the minor or be influenced through the parental relationship.  In short, we refuse to accept the fallacy that an organization which targets minors to induce them to engage in certain behavior, or in this case attend ex-gay institutions, is ultimately responsible for the results of the minor’s choice, unless a legal relationship has been created. 

Furthermore, we find insufficient language within the text of the Act itself to hold that the Senate created an enforceable legal relationship between the ex-gay institution and the minor which is violated by the minor’s “attendance” at an ex-gay institution.  This means that, for purposes of “attendance” only, ex-gay institutions are essentially “passive actors.”  In contrast to the parents, absent some further defined legal relationship (in contract or in tort, for example), ex-gay institutions owe no duty or obligation to the minor to attend the ex-gay institution that is enforceable under law.  Moreover, even if the ex-gay institution forms such a legal relationship with the minor’s parents through contract, we deem the principles of contract law to control these rights and obligations, not the text of the Act.

[Sam Spade]

Part II

With the parameters of the Act and the scope of its liability now defined, the Court turns its attention next to the Senate’s exercise of power in passage of the Act.

For the Senate to legitimately exercise power under the Constitution, such power must be expressly allocated within the Constitutional text itself. See Fritz v. Ernest.  Respondent has listed two provisions in support of the Senate’s power to pass the Act, namely 1) the Article I, Section 5, Clause 7 provision allowing for the “uniform” “Punishment” of “Fraud” through the Republic of Atlasia and 2) the Article I, Section 5, Clause 13 provision allowing the Senate to legislate concerning certain issues that speak to the subject of “medical disorders”.

Respondent argues that the powers defined under Article I, Section 5, Clause 13 concerning “medical disorders” grant the Senate the ability, as a “necessary and proper” consequence of such power, the ability to define what may or may not be considered a mental disorder.  Since, according to Respondent, homosexuality is not recognized as a mental disorder by the government or the scientific community, a claim by ex-gay institutions to “treat” homosexuality as a disorder is a fraudulent practice which the Senate can enforce under the Fraud provision found in Article I, Section 5, Clause 7.

The Court does not believe that the Senate has power to pass the Act under Article I, Section 5, Clause 7 or Article I, Section 5, Clause 13.  Furthermore, we think that Respondent misreads the scope of both clauses and improperly conflates two separate powers together in an attempt to justify the unconstitutional reach of the Act.  In the upcoming paragraphs, we shall examine each clause separately to clarify this misunderstanding.

A.

Article I, Section 5, Clause 7 states:

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For the purposes of this case, the Court will ignore the issue of whether the term “Punishment” covers civil punishment, criminal punishment, or both.  We decline to address this term because the issue of “Punishment” for committing the stated offense is not before us.  Furthermore, we do not need to examine the extent the text of the Act actually allows for punishment of the stated offense because it is unnecessary to our final disposition.

Instead, the Court focuses its inquiry on the definition and scope of the term “Fraud” in Article I, Section 5, Clause 7. 

First, the Court holds that the term “Fraud” in Article I, Section 5, Clause 7 is limited to the common-law definition of fraud.  Our rationale is based in a plain reading of the text itself.  The text of the Constitution endeavors to provide the Senate power to uniformly define Punishments for Fraud not uniformly define Fraud.  As such, we must define the term Fraud by some other applicable body of law.  Since our Constitution finds its basis in Anglo-Saxon law, that definition must come from the common law.  While we would agree that the Senate has power, pursuant to the Necessary and Proper Clause, to define certain Frauds covered under the common law definition for the purpose of “uniformly punishing” Frauds, we do not deem the Senate to have power to define Fraud outside the common law definition.

Second, the Court holds that the term “Fraud” does not cover Frauds that may be defined or created by the exercise of other powers under Article I, Section 5.  We think that a “necessary and proper” consequence of every valid exercise of Article I, Section 5 power is the allowance of the Senate to pass laws that punish “fraudulent” actions in violation of said statute.  Therefore, any definition of Fraud under Article I, Section 5, Clause 7 that included the Punishment of Frauds for violation of a statute valid under other Article I, Section 5 powers would, in effect, render the Clause virtually meaningless.  This is a result the writers of our Constitution could certainly have not intended.

With the scope of the term “Fraud” under Article I, Section 5, Clause 7 outlined, the Court next turns to the definition of common-law fraud.  Fraud is a broad and vague concept, depending in large part on the facts of the case at hand.  Moreover, fraud occurs in numerous contexts, whether an action in tort, contract, or an actual crime.  We need not go into its various machinations, but the basic definition at common law remains the same:

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See Black’s Law Dictionary, 7th Edition

As applied to the matter before the Court, it is plainly clear that language of the Act cannot fit within the definition of common-law fraud.  An act of attendance by a minor at an ex-gay institution neither knowingly misrepresents truth nor conceals facts to anyone.  Similarly, a parental requirement that his minor child attend an ex-gay institution cannot fit within the common-law definition of fraud, even if the parent lies to the child about the purposes of the institution.  For example, we would certainly not think a parent liable for fraud against a child if he told the child he was taking him to get ice cream and instead took him to a doctor.  Such issues are the province of the private family alone.

Furthermore, the Court believes that legislation which prosecuted ex-gay institutions on the ground that the practice of “attempted repression of sexual orientation” is fraudulent would be highly unlikely to meet Article I, Section 5, Clause 7 guidelines.  Such actions cannot be defined as “fraudulent” under the common-law definition unless there is some legal relationship between the ex-gay institution and the minor attending it and, to wit, there is some knowing misrepresentation or concealment of facts within the legal relationship. 

The Court chooses to illustrate this distinction with a comparison.  If an ex-gay institution promised to the child or the parent to eliminate the child’s homosexuality and reasonably attempts to do so, whether successful or not, fraud has not been perpetuated on said child or parent.  But, if an ex-gay institution promised to eliminate the child’s homosexuality and instead instructed the child in various homosexual acts or practices, then fraud has been perpetuated on said child or parent.  This is what the common-law definition functionally means, as applied to the Article I, Section 5, Clause 7 definition of “Fraud.”

[Sam Spade]

B.

Article I, Section 5, Clause 13 states:

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The Court begins its analysis by making two important observations about the initial phrase of this Article I, Section 5, Clause 13, “to promote the Public Health”.  First, the scope of the phrase “Public Health” is exceptionally broad and, we believe, grants “police power” to the Senate limited only by the other parts of the clause and the Constitution itself.  Notably, the phrase makes two other appearances in our Constitution, with similar results, in Clause 14 of this Section and in the 22nd Amendment, whose avowed purpose was to give the Senate full powers to make minimum wage legislation.  Second, the term “promote” provides a strong restriction to the grant of power to the Senate provided by the phrase “Public Health.”  According to Webster’s Dictionary, “promote” may be properly defined as “to help or encourage to exist or flourish”, “to further” or “to aid”.  Thus, we hold that the word “promote” limits the grant of “police power” in this Clause to affirmative actions where “Public Health” is involved.

The rest of Article I, Section 5, Clause 13 provides the specific matters in which the Senate may exercise this power “to promote the Public Health.”  Two specific situations are detailed: 

i) The Senate may legislate to conduct research, investigation, experiments and demonstrations relating to the cause, diagnosis and treatment of medical disorders.
ii) The Senate may assist and foster such research activities (see situation #1) by public and private agencies.

Keeping in mind the “affirmative” nature of the initial phrase of Article I, Section 5, Clause 13, as noted above, this Court thinks that the first phrase allows the Senate to pass legislation creating duties and responsibilities in certain organizations to conduct medical inquiries or research into both known and unknown medical disorders.  Furthermore, we deem the second phrase to accomplish two important objectives.  It grants the Senate a funding and support mechanism for public and private agencies affected by its exercise of power in the first phrase.  Additionally, the second phrase grants power separate from the first phrase by allowing the Senate to pass legislation furthering the goals of already created public and private agencies.

In this case, no plausible argument can be made, or has been made, that forbidding minors from attending ex-gay institutions or forbidding parents from sending their minor children to ex-gay institutions is conducting inquiries or research into medical disorders.  Even if the Act banned ex-gay institutions or forbade them from targeting minors, this Court could not legitimately uphold such actions as “conducting research” or “assisting research.”  If the Senate wanted to pass legislation funding millions of dollars into research about whether homosexuality is a “medical disorder”, we would hold the law valid under Article I, Section 5, Clause 13.  To take this logic to the extreme, while ignoring other provisions of the Constitution for a moment, if the Senate wanted to pass legislation creating a sub-office of a Cabinet department which researched whether “belief that homosexuality is a mental disorder” is, in fact, a “medical disorder”, we would find the law valid under this Clause for the same reasons.  But this Act falls woefully short of these examples.  We therefore hold that the Senate lacks power under Article I, Section 5, Clause 13 to pass the LGB Dignity Act.

Finally, the Court must address one last collateral matter concerning Article I, Section 5, Clause 13.  Petitioner argues that the “Necessary and Proper” Clause allows for the Senate to define the term “mental disorder”.  Although the exact term used in the Clause is “medical disorder”, we believe that if the term “mental disorder” was defined as a medical disorder, then the Senate could define certain diseases or conditions as being mental disorders for the purposes of “conducting research” or “assisting research.”  Similarly, as noted in Section A of this Part, we think that the Senate could create crimes and punishments under this Clause for “fraudulent violations” of legislative provisions designed to “conduct research” or “assist research.”  For example, a private agency that knowingly misrepresented the type of research it would conduct pursuant to a Congressionally-created program could be punished for “fraud” within the statute that created the program.

However, the Court wants to make it absolutely clear that the scope of the “Necessary and Proper” Clause is limited by the scope of the legislation that the Senate passes.  In other words, if the Senate passes legislation to conduct research into “mental disorders” as medical disorders, the Senate’s definition of “mental disorder” may extend no further than the conduct of research itself.  It cannot, either de jure or de facto, become the definition of “mental disorder” applicable to any and all laws, entities or persons.  The detrimental consequences of a contrary finding should be plainly obvious to any person interested in preserving the Constitution.

[Sam Spade]

Part III

As stated above, the Court does hold that the Senate lacks power under Article I, Section 5 to pass the LGB Dignity Act.  However, we think the scope of this legislation in question and the likelihood that Federal and Regional lawmakers may feel emboldened to create similar restrictions on individual rights in the future requires us to address the impact of this law on the Atlasian Bill of Rights contained in Article VI so that legislators will have a consistent framework to judge the constitutionality of their proposals.

A.

At oral argument, Petitioner consistently relied on the “free speech rights” of minors as justifying an invalidation of the Act.  Petitioner generally has the right idea, but the “speech” coverage of “attendance” at an ex-gay institution is not immediately clear from the text itself.  Article VI, Section 1 states:

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The Court finds that such “attendance”, as defined by the Act, is covered by the implied right of “freedom of association” found within the “speech” clause of this section.  In layman’s terms, freedom of association has been defined as the “individual right to come together with other individuals and collectively express, promote, pursue and defend common interests.” Furthermore, some scholars have chosen to define this right as “the freedom to live in a community or be part of an organization whose values or culture are closely related to one's preferences; or, on a more basic level, to associate with any individual one chooses.”  We accept and embrace both definitions as being applicable to those situations where, under Article VI, Section 1, associations are formed to express rights of free exercise of religion, speech, assembly and to petition the Government for redress of grievances.

For the purposes of this case, the Court believes that a minor who chooses to attend an ex-gay institution by his own free will is choosing to “associate” himself with the ex-gay institution and thereby expresses his constitutionally protected right to “freedom of speech” in this manner.  It would be the same if a minor choose to attend any pro-gay institution, a Communist party meeting or a Ku Klux Klan rally, just to name a few examples.  Therefore, since the Act forbids attendance by those under the age of 18, we hold that the minor’s freedom to associate with the ex-gay institution is violated by the Act, and on these grounds, find the Act unconstitutional.

Although not relevant to the particular case at hand, the Court does believe that there are limits to the “freedom of association” right.  These limits are not found in government actions towards the person who chooses to attend or join the organization, but rather with the organization itself.  In short, we think the government may make laws narrowly tailored to a compelling government interest that regulate the non-expressive activities of an organization.  We need not define the scope of such laws at this time, but merely point out the limitation for the aid of lawmakers.

B.

In Part I of the Court’s opinion, we interpreted the Act to cover parents who send their minor children to ex-gay institutions, as well as the minors who purposefully attend ex-gay institutions.  A necessary corollary of that conclusion is that parents would incur some unknown penalty under the Act for either intentionally making their minor children attend ex-gay institutions or for a minor’s purposeful attendance at an ex-gay institution by choice.

The Court has heretofore been silent on this subject, but we do think it best at this point in time to communicate our belief that the Atlasian Constitution does protect certain fundamental rights which have a basis in its text and which are “deeply rooted in Atlasian history”, which, in legal terms, means the principles of Anglo-Saxon common law.

One of the fundamental rights that this Court recognizes is the right of parents to direct the upbringing and education of their children in the manner they see fit.  The origin of this right in the text of the Constitution may be found in the Article VI, Section 1 protections for freedom of speech and free exercise of religion and may also be read into the liberty protections of the due process clause found in Article VI, Section 2.  We think that this right is “deeply rooted” in the principles in Anglo-Saxon common law, as respect for parental rights has long been recognized in actions for divorce, alimony, child custody and support, as well as acceptance of parents who wish to educate their children in parochial and private schools or homeschooling.

The Court holds that the plain language of the LGB Dignity Act clearly intrudes on this fundamental right, as parents would be unable to direct their minor children’s upbringing in a manner that they see fit, namely through mandatory “attendance” at an ex-gay institution.  However, we also think that this right is not universal and can be restricted if the government law in question is narrowly tailored to a compelling government interest.  In other words, if the government interest proffered in defense of the Act is compelling enough to outweigh the parents’ fundamental right to direct the upbringing and education of their children and the Act itself is narrowly tailored to further that acceptable interest, the Act will be deemed constitutional.

In the case before us, the government interest is clear and outlined in the preamble to the operative clause, specifically prevention of the “attempted repression of sexual orientation.”  The Court, however, declines to find this a compelling interest sufficient to defeat the above-stated parental rights for two reasons. 

First, many religions, entities and individuals, including parents, continue to believe that homosexuality is an aberrant practice and use ex-gay institutions in an attempt to eliminate such thoughts.  Regardless of whether one supports or opposes this view, it is without question that this belief is justifiably founded in a reasonable historical tradition.  Therefore, the Act’s punishment of “attendance” essentially forbids the parents from practicing the tenets of their religion.  Furthermore, if the Court allowed lawmakers to pass laws which forbade “attendance” at ex-gay institutions, similar logic could undoubtedly be used to pass laws to restrict the speech and assembly rights of those who feel that homosexuality is an aberrant practice.  We will not go down that road.

Second, the Court questions the reach of a government interest in “attempted repression of sexual orientation” or even just “sexual orientation” to justify laws that affect private persons, entities and private behavior generally.  Depending on the specific language of the statute, the Senate would certainly have an important interest in protecting or not protecting “sexual orientation” against private entities in the exercise of its Article I, Section 5 powers.  Moreover, we would agree that persons shall not be denied due process or equal protection under the laws from Federal and Regional governments because of their sexual orientation, but this language extends to “state action” only, not to private entities.  This limitation on “state action” also extends to denials of the right to vote or candidate in Article VI, Section 14.  In sum, our purpose is not to catalogue each and every situation where a government interest in “sexual orientation issues” is valid or even compelling, but rather to note its limits as a rationale for government restrictions.   

Conclusion

In conclusion, the Court strikes down the LGB Dignity Act in full, holding that the Senate lacks power under Article I, Section 5 to forbid minors from attending ex-gay institutions or forbid parents from making their children attend such organizations and that the Act violates minors’ right to freedom of association and parents’ fundamental right to direct the upbringing and education of his children in the manner he sees fit.

So ordered.

[Peter]

Many thanks to the Court for its thoughtful opionon and time.

Did opebo take part in your discussions? Does he intend to file a dissent?

[Barnes]

I've updated the Wiki Page for the LGB Dignity Act with the Court's actions.

[Marokai Backbeat]

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What a disgusting can of worms you just opened.