Yesterday, Judge Royce Lamberth denied the Justice Department’s request to stay his order suspending federal funding for embroynic stem cell research, which is a ruling that shouldn’t surprise anyone. Before a judge may stay a decision, they must first conclude that the party has “made a strong showing that they are likely to succeed on the merits.” So, if Judge Lamberth had stayed his own decision he would have to more or less concede that his reasoning is open to a strong attack.

There is a thin ray of light in Lamberth’s order denying the stay, however:

Defendants are incorrect about much of their “parade of horribles” that will supposedly result from this Court’s preliminary injunction.

Plaintiffs agree that this Court’s order does not even address the Bush administration guidelines, or whether NIH could return to those guidelines. (Defs.’ Opp’n 5.) The prior guidelines, of course, allowed research only on existing stem cell lines, foreclosing additional destruction of embryos.

Plaintiffs also agree that projects previously awarded and funded are not affected by this Court’s order.

Essentially, the judge appears to embrace a concession by the plaintiffs challenging stem cell research that his order does not affect money that has already been distributed to scientists — it only prevents the government from making new awards. While this limit on his order is cold comfort to scientists whose entire body of research could be rendered useless if they aren’t allowed to continue building on it with new grant money — or, for that matter, to the millions of people with illnesses who could be cured by stem cell research — it does remove the immediate threat of scientists being forced to return money they have already spent.

Additionally, the judge also seems to endorse the view that his order does not prevent the Obama Administration from moving back to the Bush-era policy on stem cells — a policy which allowed research on existing stem cell lines but would not allow new lines to be created.  As I wrote on the day that Judge Lamberth suspended stem cell funding, the judge’s reasoning still appears to prevent restoration of Bush-endorsed projects.  Nevertheless, if Judge Lamberth limits the scope of his order that will, at least, require opponents of embryonic stem cell research to file another lawsuit before they can suspend research that is not specifically forbidden by Lamberth’s order.

Now that Lamberth has denied a stay of his previous decision, that denial can be appealed to the D.C. Circuit.  Hopefully, that court will embrace the same view that was shared by the Clinton, Bush and Obama Administrations, that Congress never intended to prevent stem cell research from moving forward.

Conservative claims about being victimized by the so-called homosexual agendamay reap thousands of dollars in fundraising pitches, but as the Proposition 8 trial demonstrated, the arguments are rooted in fear, not fact, and simply don’t stand up in court. Yesterday, Judge Thomas L. Ludington of the Eastern District of Michigan — a Bush appointee — granted Attorney General Eric Holder’s “motion to dismiss the challenge” to the Hate Crimes law, throwing out the claim that the law “violates their First Amendment rights to express their opposition to homosexuals and homosexual behavior in several ways.”

Ludington ruled that the plaintiffs lacked jurisdiction and argued that “Plaintiffs’ fear of prosecution is speculative; they do not allege that they have violated the Hate Crimes Act in the past, nor that they intend to violate it in the future“:

The Attorney General once again emphasizes, however, that the Act only prohibits violent conduct, not speech, and that Plaintiffs do not allege that they intend to engage in any such violent conduct….The Attorney General’s arguments are persuasive. Plaintiffs do not have standing to pursue their claims when they do not allege an“injury in fact,” that is both “concrete and particularized,” and “actual or imminent.” In other words, they have not demonstrated that there is an existing “case or controversy” within the meaning of Article III of the U.S. Constitution. Most importantly, Plaintiffs do not allege that they intend to “willfully cause” any “bodily injury.” This is true even if one accepts Plaintiffs’ proposed definition of “bodily injury,” to include simple headaches and stomachaches, because Plaintiffs do not allege that they intend to “willfully cause” headaches and stomachaches.

Moreover, that fact, in combination with the Attorney General’s denial that the Hate Crimes Act applies to Plaintiffs’ conduct (a conclusion that is supported by the text of the statute, the Rules of Construction, and the legislative history), supports the conclusion that Plaintiffs have not demonstrated that “there exists a credible threat of prosecution” under the Act. Babbitt, 442 U.S. at 298. Plaintiffs’ fear of prosecution is speculative; they do not allege that they have violated the Hate Crimes Act in the past, nor that they intend to violate it in the future. [...]

Plaintiffs present hypothetical situations in which they believe that they will be prosecuted or subject to investigation under the Hate Crimes Act. They have not demonstrated that such situations are of “substantial and of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Id. Plaintiffs allege their own personal beliefs and assertions of third party members of the general public to suggest that they would be subject to prosecution and investigation under the Act, rather than any concrete, “reasonably founded in fact,” threat of prosecution or investigation.

The Attorney General acknowledged that prosecutors may use “evidence of speech,
expression, or associations” to prove one’s motive, but stressed that a violent act would first have to be committed. Lawyers for the plaintiffs had “previously said that if they didn’t prevail, they planned to appeal the decision all the way to the Supreme Court.”