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Scalia wrong, Thomas right on violent video games
Washington Examiner ^ | June 30, 2011 | Ken Klukowski

Posted on 06/30/2011 4:39:19 PM PDT by TheDingoAteMyBaby

Those who paint U.S. Supreme Court justices with a broad brush only prove they don't really understand the court. Justice Antonin Scalia was dead wrong in striking down California's restriction on selling horribly violent video games to children. And Justice Clarence Thomas did a spectacular job of showing why the Founders would uphold this law.

California enacted a law restricting the sale of graphically violent video games to children, requiring an adult to make the purchase. One such graphic game involves the player torturing a girl as she pleads for mercy, urinating on her, dousing her with gasoline and setting her on fire.

Video game merchants challenged the law for violating the First Amendment. By a single vote, the court agreed. That majority was Scalia, joined by moderate Anthony Kennedy and three liberal justices (Ruth Bader Ginsburg and President Obama's two appointees, Sonia Sotomayor and Elena Kagan).

The court upheld the law 7 to 2, but not on speech grounds. Scalia wrote for five justices that there are four types of speech outside First Amendment protection: obscenity, child porn, incitement and "fighting words."

Holding that obscenity only covers sexual material, the court struck down this law for not satisfying the "strict scrutiny" required of content-based speech restrictions.

Justice Samuel Alito, joined by Chief Justice John Roberts, voted that the law was void for vagueness -- so poorly written that people could not tell where the line was drawn, which would require the statute to be rewritten.

While not reaching the free-speech issue, he strongly suggested Scalia was wrong.

The first dissent was by Justice Stephen Breyer. He quoted from a 1944 case, where the court recognized that the "power of the state to control the conduct of children reaches beyond the scope of its authority over adults."

Although agreeing with the majority that strict scrutiny applies here, Breyer added in his typical fashion that this modest restriction on speech is OK because its benefits outweigh the costs to liberty.

The only originalist opinion came from Thomas, who filed an outstanding dissent that cogently set forth why this law would be acceptable in 1791 when the First Amendment was adopted.

Referencing Scalia's four types of unprotected speech, Thomas explains, "the practices and beliefs held by the Founders reveal another category ...: speech to minor children bypassing their parents. ... Parents had absolute authority over their minor children and ... parents used that authority to direct the proper development of their children."

Thomas continued that parents in 1791 had a duty to restrict influences on their children, because children were recognized to have their own moral failings, and parents were to rigorously instill good values in them and secure wholesome influences on their development.

For that reason, parents took charge of their children's education and monitored what they read and who they spend time with. Even in their late teens, children could not marry or join the military without parental consent, or vote, serve on juries, or be witnesses in court.

Thomas showed how the Founders believed limited government could only endure if parents faithfully raised children to become virtuous and productive adults. Parents had a "sacred trust" to shield children from corrupting influences and to safeguard their development into responsible citizens.

Clarence Thomas' dissent speaks to countless cultural issues we face today. It should be recommended reading for anyone trying to understand the Framers' meaning in the First Amendment where children are concerned.

This case presents as stark a contrast as you'll ever see showing how conservatives can split on the meaning of the Constitution. And it's a critical reminder that the court hangs in the balance in the 2012 election.

Examiner legal contributor Ken Klukowski is a fellow with the Family Research Council and co-author of "Resurgent: How Constitutional Conservatism Can Save America."


TOPICS: Constitution/Conservatism; Culture/Society; Government; News/Current Events
KEYWORDS: parents; parentsrights; scotus; supremecourt; videogames
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1 posted on 06/30/2011 4:39:25 PM PDT by TheDingoAteMyBaby
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To: TheDingoAteMyBaby

>>Parents had a “sacred trust” to shield children from corrupting influences and to safeguard their development into responsible citizens.<<

Parents. NOT the government.


2 posted on 06/30/2011 4:41:22 PM PDT by Do Not Make Fun Of His Ears (Dear Lord, Please judge Barack Hussein Obama for betraying Israel, and not the whole nation. Amen.)
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To: TheDingoAteMyBaby

>>Parents had a “sacred trust” to shield children from corrupting influences and to safeguard their development into responsible citizens.<<

I hope this doesn’t indicate how he will vote when Michelle tells us what we can and can’t eat. But it’s the same logic. Yikes.


3 posted on 06/30/2011 4:42:17 PM PDT by Do Not Make Fun Of His Ears (Dear Lord, Please judge Barack Hussein Obama for betraying Israel, and not the whole nation. Amen.)
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To: TheDingoAteMyBaby

It was a stupid law in California, but it was an even dumber decision by the court.


4 posted on 06/30/2011 4:42:49 PM PDT by Tribune7 (We're flat broke, but he thinks these solar shingles and really fast trains will magically save us.)
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To: TheDingoAteMyBaby

Ken Klukowski, shut up.


5 posted on 06/30/2011 4:42:58 PM PDT by The KG9 Kid
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To: TheDingoAteMyBaby
Those who paint U.S. Supreme Court justices with a broad brush only prove they don't really understand the court. Justice Antonin Scalia was dead wrong in striking down California's restriction on selling horribly violent video games to children.

Isn't this the job of parents and not government?

6 posted on 06/30/2011 4:44:13 PM PDT by DJ MacWoW (America! The wolves are at your door! How will you answer the knock?)
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To: DJ MacWoW

Where does that leave parental consent/notification laws?


7 posted on 06/30/2011 4:46:23 PM PDT by TheDingoAteMyBaby
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To: DJ MacWoW

8 posted on 06/30/2011 4:46:36 PM PDT by mgstarr ("Some of us drink because we're not poets." Arthur (1981))
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To: TheDingoAteMyBaby

You want government raising children instead of parents?


9 posted on 06/30/2011 4:47:37 PM PDT by DJ MacWoW (America! The wolves are at your door! How will you answer the knock?)
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To: Tribune7

Maybe, but to be consistent you’d have to agree that it would be within the rights of states to also pass the same law for books, movies, music, etc...


10 posted on 06/30/2011 4:48:03 PM PDT by MrShoop
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To: mgstarr

Yup. It is up to parents to make sure what their children are seeing and doing.


11 posted on 06/30/2011 4:48:29 PM PDT by DJ MacWoW (America! The wolves are at your door! How will you answer the knock?)
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To: TheDingoAteMyBaby
Justice Samuel Alito, joined by Chief Justice John Roberts, voted that the law was void for vagueness -- so poorly written that people could not tell where the line was drawn, which would require the statute to be rewritten.

If this law remained in place there would of been so many misiterpatations that would render it unenforceable...And who would decide what is violent and what isn't. The last group we can to trust to make such decisions is the state.


12 posted on 06/30/2011 4:49:52 PM PDT by darkwing104 (Lets get dangerous)
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To: TheDingoAteMyBaby

If parents don’t want their children to have some product, don’t give them the money to buy it. If they do somehow come into possession of some product to which the parents object, take it away, destroy it, and throw it in the trash. That is how to restrict what they have.

I find no reason to believe that government would do a better job of parenting than parents, and I am tired of lazy parents abdicating their responsibilities. Who would want a mob of corrupt politicians deciding what is acceptable for their children?


13 posted on 06/30/2011 4:53:36 PM PDT by seowulf ("If you write a whole line of zeroes, it's still---nothing"...Kira Alexandrovna Argounova)
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To: DJ MacWoW

When Planned Parenthood tells minor girls to lie about their age to get access to abortion and birth control services, what recourse do parents have?


14 posted on 06/30/2011 4:56:38 PM PDT by TheDingoAteMyBaby
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To: TheDingoAteMyBaby
I think I agree with Thomas on this one.

I would not agree if this was a federal federal law, but it's not.

Given that this is a state law, and the absence of any compelling reason this is a form of speech that's within the intent of First Amendment protection I'm inclined to leave it to the states.

15 posted on 06/30/2011 4:57:00 PM PDT by tacticalogic
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To: TheDingoAteMyBaby

“The court upheld the law 7 to 2, but not on speech grounds. Scalia wrote for five justices that there are four types of speech outside First Amendment protection: obscenity, child porn, incitement and “fighting words.” “

You see boys this is why we can’t afford to have the Federal Government apply the 1st amendment to the States. Such an imposition demands that they cut holes in the amendment to the point where it is clearly whatever any injustice(Federal judge) wants the law to be.


16 posted on 06/30/2011 4:58:58 PM PDT by Monorprise
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To: TheDingoAteMyBaby
I think it's a stupid law. We have too many laws in the country right now, and California seems to be leading the way on more restrictions. From a federal constitutional standpoint, this needs to be used more often.

Justice Samuel Alito, joined by Chief Justice John Roberts, voted that the law was void for vagueness -- so poorly written that people could not tell where the line was drawn, which would require the statute to be rewritten.

This needs to be used more often. We have tons of businesses and individuals dinged for stupid technicalities.

Like this:

appeal to "a deviant or morbid interest in minors."

What does that even mean? I'm licensed as an attorney, and I still don't know what that means.

We as a society need to step back and think about not our values, which are important, but what is worth using criminal and civil fine penalties. Do I want my kids playing Scarface - the World is yours? Hell no. Should that be a LAW subject to criminal penalty? No. That's my job to police my home.

17 posted on 06/30/2011 4:59:47 PM PDT by Darren McCarty (I am not lead by any politician. I am my own leader.)
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To: TheDingoAteMyBaby
Parents need to have control of their children. If they do not, it is NOT governments place to step in.

We are not discussing PP. We are discussing government doing the job of the parents.

18 posted on 06/30/2011 5:01:45 PM PDT by DJ MacWoW (America! The wolves are at your door! How will you answer the knock?)
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To: TheDingoAteMyBaby

``Thomas showed how the Founders believed limited government could only endure if parents faithfully raised children to become virtuous and productive adults.``

Viz- this does not apply to ``gay marriages`` because gays cannot be parents naturally nor can they ``raise`` children from birth because they cannot procreate in a ``gay marriage``??

Ergo this law does not apply to ``gay marriages``??

What is going on here??

Does the court now have to re-define ``parent`` as it redefined ``marriage``??

The courts cannot have their cake and eat it too.

Otherwise there is a double standard existing in law for:
a.real marriages as existed in 1791 onward til 2011 with parents naturally having children and raising them from birth and
b. ``gay marriages`` which cannot raise children from their birth because neither gay partner can be a participant in the birth because gays in a ``gay marriage``cannot procreate.

The courts cannot return to 1791 and redefine marriage for 1791 nor redefine ``parent`` for 1791.

What if it was a ``gay marriage`` couple that had filed the lawsuit for an adopted child??

This opens a can of worms which borders on semantic devolutionary redefinition of everything in the 1791 dictionary which is absurd.

``Gay Marriages`` can never by the first, nor the middle but are always the last terms in any genealogical document.


19 posted on 06/30/2011 5:03:18 PM PDT by bunkerhill7
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To: TheDingoAteMyBaby

Oh and the PP thing doesn’t work because they’re government funded and taking over the parents job. They need to be shut down.


20 posted on 06/30/2011 5:03:39 PM PDT by DJ MacWoW (America! The wolves are at your door! How will you answer the knock?)
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To: darkwing104
If this law remained in place there would of been so many misiterpatations that would render it unenforceable...And who would decide what is violent and what isn't. The last group we can to trust to make such decisions is the state.

Actually, the last group you'd want doing it is a bunch of unlected bureaucrats in Washington.

The federal government needs to leave it to the states, and then we need to tell our state legislators to just leave it alone.

21 posted on 06/30/2011 5:05:51 PM PDT by tacticalogic
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To: TheDingoAteMyBaby
Very good dissent! Justice Thomas is rebuilding the foundations for restoring the protections children need, those protections being the duties of the Parents, and returning the respect of the law to Parents as the responsible and final authority in the lives of their children. Note the following two sentences in his dissent:
Admittedly, the original public understanding of a constitutional provision does not always comport with modern sensibilities. It may also be inconsistent with precedent.
YES! Let's restore the Constitution in it's true original genius of meaning!
22 posted on 06/30/2011 5:06:58 PM PDT by bvw
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To: tacticalogic

“I think I agree with Thomas on this one.

I would not agree if this was a federal federal law, but it’s not.

Given that this is a state law, and the absence of any compelling reason this is a form of speech that’s within the intent of First Amendment protection I’m inclined to leave it to the states.”

This is why the 1st amendment as written, ratified, and practiced for the first 100+ years. DID NOT APPLY TO THE STATES!

Incorporation is a radical and completely arbitrary invention of the Federal courts(IE Federal injustice system) as early as 1925.


23 posted on 06/30/2011 5:07:06 PM PDT by Monorprise
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To: TheDingoAteMyBaby

SO much for community standards.

Next up the Kiddie Porn TV channel!!


24 posted on 06/30/2011 5:09:44 PM PDT by GeronL (The Right to Life came before the Right to Happiness)
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To: TheDingoAteMyBaby

How our grand parents survived Looney Tunes back in the Thirties and Forties I’ll never know ....


25 posted on 06/30/2011 5:11:33 PM PDT by SkyDancer (You know they invented wheelbarrows to teach FAA inspectors to walk on their hind legs.)
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To: DJ MacWoW

abolish public schools then


26 posted on 06/30/2011 5:12:43 PM PDT by GeronL (The Right to Life came before the Right to Happiness)
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To: Do Not Make Fun Of His Ears

That is the point....michelle is the government. A really sick non logical society is one that rationalizes urinating and torturing a girl and saying it is not obscene and allowing it to be marketed. It should have no legal protection whatsoever, which is exactly how the Founders would have thought.

Scalia has no knowledge of Natural Law Theory or ignores it’s influence in the Constitution....it is the basis of our laws...inalienable rights come from God and are non negotiable, yet Scalia has said, in his ignorance, that States should be allowed to vote for the right for women to kill their babies....and possibly, deny the baby their inalienable right to life. What does Scalia not understand about inalienable rights? Why would the place of a human being affect their “life”?

Thomas totally gets it. He is an expert on Natural Law and understands the Constitution as it was written. There is a law to judge obscenity-—it is God’s laws....in the founding documents and it is easy to understand those Universal Laws which are the bases of our Constitution (or it was before they adopted Marx’s moral relativity where law becomes arbitrary whims of whomever!!!!like that homosexual judge in SF.

We no longer have “Just Law”—we have unequal law which gives “rights” to minorities and takes them away from others whom they “think” deserve the discrimination. It is the powerful elites pretending to be god and determining their own right and wrong....not based on God’s law which is in the Founding Documents!

What we have is unconstitutional laws and Thomas thoroughly understands that...and that is why the Marxists are trying to get him off the court 24/7. He is the smartest one on the court.


27 posted on 06/30/2011 5:13:01 PM PDT by savagesusie (Virtue is a habit of the mind, consistent with nature and moderation and reason. Cicero)
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To: GeronL
That's ridiculous.

Why do you want a nanny state to raise children? I'm seeing the most ridiculous comments for government intervention instead of parental control.

28 posted on 06/30/2011 5:16:37 PM PDT by DJ MacWoW (America! The wolves are at your door! How will you answer the knock?)
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To: TheDingoAteMyBaby

The internet is a video game. It will end up destroying us. Social networking will be the end of human to human face to face interaction. My 2 cents. Virtual reality will become reality.


29 posted on 06/30/2011 5:16:37 PM PDT by screaminsunshine (Socialism...Easier said than done.)
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To: TheDingoAteMyBaby
I live in California and my 16 year old loves Call of Duty.

He is very responsible (A's and B's in school), so I don't mind if he purchases the ‘violent’ games. He actually was a bit shocked to hear about the ruling.

In California, the schools teach homosexuality and how great gay marriage is without parental consent and if a young girl needs an abortion, the parent does not have the right to know.

At least if my son purchases a new game, he has to run it on on his game console at home and I can see if it is inappropriate. It is not like going to a movie where I would not have any idea what he is seeing.

Anyway, I think that this is best left to the parents.

30 posted on 06/30/2011 5:18:00 PM PDT by PDGearhead (Obama's lack of citizenship)
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To: DJ MacWoW

You can’t have community standards, without government laws.

America used to have very rigid, very strict, community standards.


31 posted on 06/30/2011 5:20:00 PM PDT by ansel12 (America has close to India population of 1950s, India has 1,200,000,000 people now. Quality of Life?)
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To: Do Not Make Fun Of His Ears

He’s stating that the parents, not the wookie in chief, have the sacred trust.


32 posted on 06/30/2011 5:20:33 PM PDT by Scotsman will be Free (11C - Indirect fire, infantry - High angle hell - We will bring you, FIRE)
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To: TheDingoAteMyBaby

I would like all the Pro-ban violent video games types to think back to about 1985ish.

Remember a certain VP’s wife and her crusade along with a bunch of Washington wives to ban any music they disagreed with? Thanks to a motley crew of musicians, Frank Zappa, Dee Snider (Twisted Sister) and John Denver, the damage they did was minimized to a warning sticker on albums and CDs. That was bad enough.

I’m 45. I grew up during the church led hysteria that the game Dungeons and Dragons was creating a generation of Satanists. Didn’t happen.

I also was around for PONG, PacMan and the first round of video games. None of us went mad from slaying dragons, shooting aliens and yes, even shooting bad guys. You know, just like every little kid with a Daniel Boone hat and a toy gun has imagined doing for a while now? And ‘played war’ with vivid imaginations for thousands of years before that? Oh....forgot about that huh?

If there is anyone here that can say with a straight face that VGs are any worse than movies, I don’t know what to tell you. Don’t give me that “They’re shooting virtual people so they will grow up to shoot real people” crap. If that were true, half this planet would be dead.

The regulation of video games belongs to #1 the companies who choose to make whatever types of games they want (for without games, the point would be moot) and #2, the Parents, Period. Government has no place in this at all.

Video game companies voluntarily created a rating system for parents, advertize the hell out of it, label every game and that’s all they SHOULD do. If parents are that damn lazy and uninvolved that they pay no attention to what their kids do, that’s the parent’s fault and I and every other person who has spent a lifetime enjoying a pastime should not have to suffer their, or governmental stupidity so that some Tipper Gore clone and homeowner association wannabee can exercise their ‘au-thor-a-tay’.

Oh, and many of those video game traumatized ‘children’ are now, and have been for some time, defending your country, operating on your family members, driving your school busses and cooking the meals at your 5 star restraunts.

Think about it before you rush to demand even more government in your lives. And stay out of mine.


33 posted on 06/30/2011 5:21:14 PM PDT by Norm Lenhart
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To: Monorprise
This is why the 1st amendment as written, ratified, and practiced for the first 100+ years. DID NOT APPLY TO THE STATES!

Incorporation is a radical and completely arbitrary invention of the Federal courts(IE Federal injustice system) as early as 1925.

True, but that applies only to the 1st Amendment. That's the only one of the Bill of Rights that specifies EXACTLY who it applies to: "CONGRESS shall make no law", meaning the Federal Congress.

The other amendments, in those parts which are protections of the rights of citizens, were taken to be applied within the State as well, as each joined. Early pro-slavery Judges shunted out that original intent.

34 posted on 06/30/2011 5:21:38 PM PDT by bvw
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To: DJ MacWoW

The law as I understand it didn’t allow children to buy it, just like they can’t buy skin magazines or beer. The parents can buy it for them if they desire.


35 posted on 06/30/2011 5:22:15 PM PDT by Scotsman will be Free (11C - Indirect fire, infantry - High angle hell - We will bring you, FIRE)
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To: Norm Lenhart

This ruling gives the Government a LOT more control over you and your children than it takes away.


36 posted on 06/30/2011 5:22:58 PM PDT by bvw
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To: DJ MacWoW
Why do you want a nanny state to raise children?

Most of us would choose to raise our kids in the cleaner community of traditional America, before you guys and the Warren Court created the post 1960s America.

37 posted on 06/30/2011 5:23:41 PM PDT by ansel12 (America has close to India population of 1950s, India has 1,200,000,000 people now. Quality of Life?)
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To: Scotsman will be Free

That is what I infer too from reading the Thomas dissent, although I did not read the CA law to which it applies.


38 posted on 06/30/2011 5:24:14 PM PDT by bvw
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To: DJ MacWoW
Why do you want a nanny state to raise children? I'm seeing the most ridiculous comments for government intervention instead of parental control.

I don't see where how this law takes away any of your "parental control". If you want your kids to play any of those games, they can, but you have to buy it and give it to them. That control is still in your hands.

39 posted on 06/30/2011 5:26:02 PM PDT by tacticalogic
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To: ansel12
You can’t have community standards, without government laws.

Sure you can. And community standards used to be higher before government stepped in. Remember when schools could actually punish kids? Like sitting them in corners or the hall? Not anymore. Government says it hurts their little feelings.

Remember when parents actually had authority? Kids now only have to call the state if Mom and Dad make them mad and it's off to jail for disciplining the kiddies. The accusation doesn't even have to be true. Government has taken away parental authority and replaced it with THEIR "authority". And you want to give them MORE?!

40 posted on 06/30/2011 5:26:09 PM PDT by DJ MacWoW (America! The wolves are at your door! How will you answer the knock?)
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To: Norm Lenhart

The military is formally recognizing witches and satanists, homosexuals “marry”, porn is on billboards.

You haven’t noticed a difference between 1960 America and 2010 America?


41 posted on 06/30/2011 5:27:21 PM PDT by ansel12 (America has close to India population of 1950s, India has 1,200,000,000 people now. Quality of Life?)
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To: Scotsman will be Free
The parents can buy it for them if they desire.

And they probably do. And kids probably get someone older to get games for them just like they do beer and cigarettes. If the kid has money no law is going to stop them.

42 posted on 06/30/2011 5:28:58 PM PDT by DJ MacWoW (America! The wolves are at your door! How will you answer the knock?)
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To: bvw

Aside from banning their actual abuse and murder, the government should have no control over them Period. That’s the parent’s job.

My whole point is that Govt has too much control! And adding another layer, as Thomas’ dissent would have provided, is not what I want.


43 posted on 06/30/2011 5:29:36 PM PDT by Norm Lenhart
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To: ansel12
before you guys and the Warren Court created the post 1960s America.

What tripe. I was a kid in the 50's and the authority was Mom and Dad not government. Take government OUT of raising kids and make/let parents do it again.

44 posted on 06/30/2011 5:30:36 PM PDT by DJ MacWoW (America! The wolves are at your door! How will you answer the knock?)
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To: PDGearhead

There is no such thing as a ``gay parent`` according to definitions in the dictionary:

from my 1887 Webster`s dictionary:

``parent n, [OF., fr.L. parens, -entis, fr. parere, to bring forth]

1. One who begets or brings forth offsspring; a father or a mother.``


beget : 1. ,to procreate as the father : sire
2: to produce especially as an effect or outgrowth

source: http://www.merriam-webster.com/dictionary/beget

Are the courts redefining the word ``parent``?

``Gay parent`` ia a contradiction in terms, a falsehood because it does not fit the dictionary definitions.


45 posted on 06/30/2011 5:30:57 PM PDT by bunkerhill7
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To: Do Not Make Fun Of His Ears
In this case, the court voted to enable the government to totally deprive the parents of the exercise of this right and sacred trust. You totally missed the point.
46 posted on 06/30/2011 5:32:01 PM PDT by hinckley buzzard
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To: ansel12

Red herring. We seem to agree on many issues, but not this.

Parents should have control of what their kids buy/do. That has nothing to do with military witches and I have never seen an X rated billboard even in Las Vegas. Short, tight clothes and 7 in heels isn’t ‘porn’.


47 posted on 06/30/2011 5:32:31 PM PDT by Norm Lenhart
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To: tacticalogic
That control is still in your hands.

Not really. Are Mom and Dad bothering to check what their kid is playing or counting on government to make sure they can't get it? Does the sweet kiddie have money? S/he can get someone older to buy games, booze and cigarettes.

The point is that Mom and Dad need to WATCH what their kid is doing. Not government.

48 posted on 06/30/2011 5:33:28 PM PDT by DJ MacWoW (America! The wolves are at your door! How will you answer the knock?)
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To: Norm Lenhart

Our laws are what create the public space, you cannot raise families in a cesspool.

Even at my wildest in life, I always wanted to protect the common space for the families, I never wanted the wild to take over that space.


49 posted on 06/30/2011 5:34:42 PM PDT by ansel12 (America has close to India population of 1950s, India has 1,200,000,000 people now. Quality of Life?)
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To: DJ MacWoW

“The point is that Mom and Dad need to WATCH what their kid is doing. Not government. “

The answer. Point, Set, Match.


50 posted on 06/30/2011 5:35:06 PM PDT by Norm Lenhart
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