Kansas Judge champions First Amendment in abortion cases Judge has been 'cheered and jeered' by both sides of the debate

By Roxana Hegeman Associated Press WICHITA, Kan. (AP) -- The federal judge overseeing the challenge of a Kansas law stripping Planned Parenthood of federal family planning money has long championed First Amendment rights in rulings indiscriminately backing both sides of the abortion issue. U.S. District Judge J. Thomas Marten infuriated anti-abortion groups this past week when he issued a temporary injunction prohibiting Kansas from enforcing that statute, ruling it violated the First Amendment because its purpose was to punish Planned Parenthood for its advocacy of abortion rights. He also found it unconstitutional because it imposed additional restrictions on a federally-funded program. He ordered Kansas to restore its funding. The decision drew national attention on a judge whose fidelity to the First Amendment has guided his handling of several abortion-related cases. "In the abortion cases, I have been applauded and jeered at by both sides of the abortion issue," the 59-year-old judge said Friday in an interview with The Associated Press. Marten, nominated to the bench by President Bill Clinton, filled in 1996 the judgeship once held by his great uncle, the late Judge Delmas Hill, whom he calls "Uncle Buzz." Hill was first nominated by President Harry Truman in 1949 to the then newly created federal judgeship in Kansas and later nominated by President John F. Kennedy to a seat on the 10th Circuit Court of Appeals. Marten hung his Uncle Buzz's photo, along with those of judges who held that post after him, on the wall next to where his black robes hang. Marten said he did that to remind himself of those judges who came before him every time he puts on his robe to go into the courtroom. And it is in the same federal courtroom where his great uncle once presided that Marten admonished litigants recently that the First Amendment is "the absolute bedrock of this country's freedom" -- in which the ability to express an opinion, even a controversial one, has to be protected. "The freedom of ideas and expression is at the very heart of democracy and our freedom," Marten told AP. Although Marten refused to discuss his personal views on abortion or talk about his cases, his rulings show an unwavering adherence to the Constitution and legal precedent. "Abortion is legal under certain circumstances, like it or not. The fact is, it is. And states pass restrictions; sometimes they're upheld, sometimes they're shot down," Marten recently told an anti-abortion activist during a hearing. "But the law of the land is that abortion is legal under certain circumstances, and that is not going to change in a court." Besides the Planned Parenthood case, others include: -- Earlier this year, Marten cited free speech rights in rejecting a Justice Department request for a temporary injunction that sought to keep an anti-abortion activist away from a Wichita physician who planned to do abortions. Marten ruled he would rather err on the side of the First Amendment in finding that the letter, which vaguely referenced explosives under the doctor's vehicle, was not a "true threat." -- In 2006, Marten struck down an opinion by former Kansas Attorney General Phill Kline, an abortion foe, requiring abortion clinics to report underage sex between consenting teenagers. Marten's ruling, hailed by some as a constitutional victory for the privacy rights of youths in health care, found that Kansas law gives health care providers discretion to determine whether there has been sexual abuse. -- During the 2001 Summer of Mercy demonstrations in Wichita, Marten cited the First Amendment to protect the right of abortion protesters to march when city officials tried to shut them down. Donna Lippoldt, director of Operation Save America-Wichita which filed that lawsuit, said it was very easy for Marten to see that the protesters were denied their First Amendment rights. "In our case he was fair, but I think many judges today are legislating from the bench," Lippoldt said. Marten contended declaring a statute unconstitutional is not legislating, but saying there is a deep-seated problem with a law. "I am puzzled by how upholding the Constitution of the United States, even when it is not particularly popular among certain groups of folks, is activist," he said. Marten, a 1976 graduate of Washburn University's School of Law, began his career as a law clerk for U.S. Supreme Court Justice Tom Clark. He was in private practice in McPherson at the time of his appointment to the federal bench. Outside the courtroom, Marten has a lighter side that yearns for more than law books. In the sanctuary of his chambers -- sitting near a table brimming with photos of his three grown children and the Alabama federal judge he is dating -- he strums a guitar and croons a melancholy song he composed himself, "Come Sit Here With Me." YouTube videos of his three-piece string band, The Shoes, offer further testament to his passion. Among them is a performance at the 2007 inauguration of then-Gov. Kathleen Sebelius, now secretary of U.S. Health and Human Services. Then Marten puts on another song he wrote himself, "Dreams Die Hard." Is it biographical? "It is all about that, the whole song writing thing," he replied. "That has never gone away." But, for now, he seems content to use his music to let go of the tensions of life as a federal judge. Published: Tue, Aug 9, 2011