PEOPLE FOR BLOG

Fourth Circuit Strikes Down North Carolina Ultrasound Law

A unanimous panel of Fourth Circuit judges today struck down a North Carolina law that forces women seeking an abortion to undergo a sonogram, and then see and hear a detailed description of the fetus - a process that is clearly designed to try and make them choose not to have an abortion. The court bases its decision not on women's right to make their own reproductive choices, but on doctors' First Amendment right not to deliver an anti-choice message that may not be helpful to their patients.

The court focuses on how the law's requirements "impose an extraordinary burden on expressive rights" of the doctors.

While the state itself may promote through various means childbirth over abortion, it may not coerce doctors into voicing that message on behalf of the state in the particular manner and setting attempted here.

Noting that two other circuits have upheld similar laws, the court writes:

With respect, our sister circuits read too much into Casey and Gonzales. The single paragraph in Casey does not assert that physicians forfeit their First Amendment rights in the procedures surrounding abortions, nor does it announce the proper level of scrutiny to be applied to abortion regulations that compel speech to the extraordinary extent present here.

The North Carolina law struck down by this decision did not have an exception for rape or fetal abnormalities. The court writes:

Particularly for women who have been victims of sexual assaults or whose fetuses are nonviable or have severe, life-threatening developmental abnormalities, having to watch a sonogram and listen to a description of the fetus could prove psychologically devastating. Requiring the physician to provide the information regardless of the psychological or emotional well-being of the patient can hardly be considered closely drawn to those state interests the provision is supposed to promote. [internal citations removed]

The repudiation of North Carolina's law was written by Reagan nominee J. Harvie Wilkinson and joined in full by Wliiam Byrd Traxler (a Clinton judge) and Allyson Kay Duncan (a Bush-43 judge). But since today's ruling creates a circuit split, the final decision on laws like this one is likely to be made by the Supreme Court.

PFAW Foundation

No Justice for Anyone Until All Lives are Valued

This weekend, thousands of Americans from all walks of life took to the streets to protest the unaccountable deaths of unarmed African American men at the hands of police officers.
 
The multiethnic, multi-racial, multi-generation, LGBT and straight crowds filling streets in major cities were reminiscent of demonstrations that we have seen so many times before: marches for civil rights, women’s rights, gay rights, workers’ rights.Those marching this weekend recognized that after so many struggles and so many victories, we are still struggling to build a society that treats every human being with dignity under the law.

Something is wrong in America when people of color — particularly African American men and boys — do not feel safe in their own communities. Something is wrong when that sense of unease comes from the very systems we all have been taught to respect, honor, and count on for trust and protection.

This journey has never been easy, and has never moved forward without fearless social movements. Even after the passage of the Emancipation Proclamation and the 13th, 14th and 15th amendments to the U.S. Constitution, our laws encoded racial segregation for decades and enabled an explicit system of control over Black lives. Even then, African Americans were subjected to the Tuskegee experiment, witnessed the assassination of Dr. Martin Luther King, Jr., mourned the 1985 police shooting of 66-year-old Eleanor Bumpurs. In our history, just as in our present reality, African Americans have faced a dramatically different justice system from the one that white Americans experience.

Tamir Rice, a 12-year-old boy with a toy gun, is shot dead in a park because he is seen as a threat. A father, Eric Garner, allegedly selling cigarettes on a streetcorner dies at the hands of a police officer, and the case never goes to trial. Death without trial is seen as an appropriate punishment for Michael Brown, a teenager who may have stolen a box of cigars. These cannot be trivialized as flukes, or as isolated acts. They are the products of a justice system that still does not value or see all Americans equally.

Those who are involved in any struggle — for the recognition of the humanity of people of color, of immigrants, of women, of LGBT people — must recognize that when a justice system puts one group at risk for rights denied, every group is at risk. No struggle for civil rights will be complete until this injustice is rectified and yes, it can be rectified. But it will require getting to the root causes of racial injustice to forge a democracy that truly represents all of us and build a justice system that protects all Americans.

This past weekend demonstrators, in a unified voice, demanded stronger laws against racial profiling, special prosecutors in cases of police misconduct, and the demilitarizing of police forces. These are reasonable, doable demands. But the solutions must also also go beyond the criminal justice system.

Those of us fighting any civil rights fight must open our eyes and keep them open to the truth that all men are not treated equally in America. Because of this, the voices of four mothers who have lost their sons – Trayvon, Jordan, Michael and Eric – have become a call, a movement for justice like nothing seen in the past decade. There can be no justice for any of us until we consider all lives fully human, fully worth living.

PFAW Foundation

Michigan’s Lame Duck Session Ends Without Passage of “Right to Discriminate” Bill

In a victory for LGBT equality and genuine religious liberty, Michigan’s state legislature ended its 2014 lame duck session last night without passing a bill that would have allowed individuals and businesses to cite religious beliefs to bypass state anti-discrimination laws.

The Michigan Religious Freedom Restoration Act would have allowed business owners to refuse service to LGBT customers, and was initially introduced as a counter to a proposed state bill that would protect LGBT people from discrimination. But while the anti-discrimination bill never even moved, the discriminatory bill passed in the House.

After the bill was introduced in the state legislature, PFAW members and local activists mobilized to call lawmakers and raise awareness of the bill’s dangerous consequences for LGBT Michiganders. Efforts like this are not unique to Michigan and come in the wake of this year’s 5-4 decision by the Supreme Court in the Hobby Lobby case. This legislation is part of a nationwide campaign by the Right to hijack freedom of religion and use it as a weapon to deny Americans their fundamental rights.

Fortunately, the bill -- which has been called the “right to discriminate” bill by some – did not even come to the State Senate floor for a vote.

This was the second of two victories in the Michigan state legislature’s lame duck session. Earlier this month, Michigan Republicans introduced a bill that would change the way the state’s electoral votes are counted in presidential elections. This strategy isn’t unique to Michigan, but is part of a larger right-wing effort to use Republican election victories in blue and swing states to consolidate political power by rigging the Electoral College, tilting the playing field to the GOP’s advantage. Last year, PFAW helped beat back similar plans in Pennsylvania and Virginia that would have changed the way those states apportion their electoral votes. In Michigan, we were just as engaged, with our members and staff attending committee hearings and lobbying legislators.

With the passage of a key deadline last week, the Electoral College rigging bill is also effectively dead for the year. But its proponents can (and likely will) bring it up again in the 2015 session – as they may also do with the “right to discriminate” bill. Michigan’s lame duck session has ended without either of these insidious bills becoming law, but the fight is far from over. We expect to see similar state-level legislative attacks from the Right throughout the next year. PFAW is proud to be a leader in the ongoing fight against right-wing extremism, and we’re ready to keep working in defense of progressive values in 2015 and beyond.

PFAW

Patrick Leahy and This Year's Success on Judges

As we've noted, 2014 has been a year of striking success for judicial nominations, with the Senate confirming a total of 89 circuit and district judges this year. That's the most judges in a single year since 1994, when the Senate confirmed 99 of President Clinton's circuit and district court judges. And due to Republican obstruction, these were not "easy" votes, even though the vast majority of nominees were approved with little to no opposition. Except for 11 who were confirmed by voice vote in the closing minutes of the 113th Congress, Republicans required a cloture vote for every nominee and a roll-call confirmation vote for all but a few of them, meaning that every confirmation consumed a great deal of floor time. (In contrast, about 40% of George W. Bush's circuit and district court nominees were confirmed by unanimous consent or voice vote.)

This yearlong commitment to judges, especially toward the end when most senators just wanted to go home, greatly served the American people and the judicial system we all rely on to protect our rights and the rule of law. Majority Leader Reid rightly made this a priority.

But a special recognition goes to Patrick Leahy, the outgoing chairman of the Judiciary Committee. He and his staff worked hard to process nominees quickly and efficiently, even while Republicans sought to slow the process down for no reason (e.g., routinely insisting on delaying committee votes without need or explanation). Timely hearings and votes are a critical component of an efficient confirmation process. The 11 consensus nominees approved by voice vote at the very end of the 113th Congress were all approved by the Judiciary Committee during the lame duck, and three of them had their hearings at the beginning of the lame duck. This speaks to the chairman's commitment to filling the vacancies on our nation's courts.

But Leahy's contributions went far beyond the Judiciary Committee hearing room. He has regularly spoken out on the Senate floor on the importance of getting judges confirmed, exposing and condemning needless delaying tactics. He has spoken out in party caucus meetings and in one-on-one conversations with his Democratic colleagues. And he doesn't just speak in generalities: He is specific, always with an array of statistics at his command demonstrating his point.

So much of the work of the Senate goes on off camera, in the interactions among its members. Perhaps no one knows that better than Leahy, who has served in the Senate longer than anyone else there today. Our nation is reaping the benefit of his dedication and his talent, since the Senate has gotten the number of judicial vacancies down to below – well below, in fact – where they were when President Obama took office.

This year's success would not have happened without him.

PFAW

Judge With a Political Ax to Grind Strikes Down Obama's Immigration Action

Sometimes you can tell when a judge is just itching to replace their robe with their politician's hat. Today, a federal district judge in Pennsylvania has struck down President Obama's recently announced executive actions on immigration as unconstitutional. But in so doing, Judge Arthur Schwab didn't just reach a wrong conclusion: He wrote his opinion in a way suggesting that he has put his ideological priorities ahead of the law.

The big questions in this case are: (1) Does the executive action apply to Elionardo Juarez-Escobar, the individual in this case? and (2) If so, is the executive action constitutional?

That's the order you'd expect the questions to be discussed, since judges are supposed to avoid making constitutional interpretations if they don't have to. But Judge Schwab – nominated to the bench by George W. Bush – tackled the constitutional question first, declaring the policy unconstitutional. Only then did he get to the second question, where he discussed how difficult it is to determine if the policy applies to Juarez-Escobar. About 2/3 of the way into the opinion, after addressing the constitutional issue, he writes:

[I]f President Obama's Executive Action is constitutional, the Court must determine its applicability to this Defendant.

Actually, he has that backwards: Only if the executive action applies to the defendant does the judge have any business addressing its constitutionality. His desire to jump to the constitutional question raises questions.

So do his needless editorial comments making clear that he disapproves of extending basic rights to undocumented immigrants. He writes:

Although it may seem counterintuitive that the Constitution, a document created to protect the citizens of this Nation, can endow undocumented immigrants illegally residing in this country with any constitutional rights, the Supreme Court of the United States has ruled that these individuals are entitled to be treated humanely and, at least on a procedural level, are to be afforded with certain constitutional rights and protections.

God forbid.

Adding to the question as to whether Schwab is being more judge or politician, he devotes an entire section to 2011 statements by President Obama that are not relevant to the issue but which far-right Republicans cite routinely. Obama made general comments about not being able to unilaterally change immigration law by executive order. He never said that he could not take any executive action, let alone the actions he took last month, which do not grant citizenship, give people legal status, or otherwise actually change the underlying immigration law.

And that's really the big picture here. Although there are over 11 million undocumented immigrants in the country, Congress only gives the administration the resources to deport about 3.5% of that number. Congress drafted the Homeland Security Act of 2002 with the recognition that decisions about priorities have to be made: In that law, Congress expressly gave the Department of Homeland Security the authority to "establish[] national immigration enforcement policies and priorities." And that's what President Obama is doing, just as other presidents have done before him. And just as the Roberts Court recognized in the 2012 case of Arizona v. U.S., where the Court wrote that "a principal feature of the removal system is the broad discretion exercised by immigration officials." President Obama is not doing anything even remotely beyond the pale.

So while President Obama's 2011 statements make great fodder for Fox News, they don't address the current executive actions, and the only reason to include them in a judicial opinion is to score political points.  Fortunately, this is just a district court ruling and is not likely to be the last word on this issue.

PFAW Foundation

PFAW Member Telebriefing: What We Can Expect From the Right in 2015

On Friday PFAW members and activists joined senior staff on a telebriefing about the types of priorities and tactics we can expect to see from the Right in the coming year. PFAW Communications Director Drew Courtney kicked off the call with a description of the political landscape in the wake of the midterm elections, where right-wing politicians are “now holding the levers of power in critical decision-making roles.”

Executive Vice President Marge Baker discussed the “CRomnibus” spending bill, saying that the antics we have seen during the lame duck are a microcosm of what we’re going to see in the new Congress. She noted that the harmful special interest riders snuck into the bill, such as the Wall Street giveaway and the raising of limits on contributions to political parties, are examples of the kind of “strong-arming techniques” we are likely to continue to see going forward.

Senior Fellow Peter Montgomery also joined the call, noting that the Right has a sizable agenda for the new year — one that begins with right-wing activists’ hatred of President Obama. This agenda, he said, includes repealing Obamacare, impeaching the president, resisting “to the bitter end” the advancement of marriage equality, and fighting anti-discrimination laws. Montgomery noted that in the coming year, we can expect to see GOP politicians making their already-close ties with Religious Right figures even closer.

Regional Political Coordinator Scott Foval discussed the Right’s political work at the state level. He highlighted Michigan’s state house, where in only the past couple of weeks both a “right to discriminate” bill and an electoral college-rigging bill have been moving through the legislature. Foval pointed out that this type of legislation may surface in other states across the country. The coming year will provide many opportunities for PFAW members to get involved at the state level as citizen lobbyists, he said.

Speakers underscored that the answers to all of the issues PFAW members raised on the call — from the damaging spending bill riders, to the influence of the right-wing American Legislative Exchange Council (ALEC) at the state and local level, to the disturbing revelations from the recently-released torture report — is to organize and advocate for the values we believe in.

You can listen to the full telebriefing here:

PFAW

Vivek Murthy’s Confirmation as Surgeon General is a Loss for the NRA, a Victory for Common Sense

Last night, after months of delay, the Senate voted to confirm Dr. Vivek Murthy as the new U.S. surgeon general.

Dr. Murthy's confirmation was strenuously opposed by the National Rifle Association and its allies in Congress, due to his belief that guns and gun violence are a public health concern. Murthy, an experienced and highly qualified physician who teaches at Harvard Medical School, has expressed support for limited, common-sense reforms regarding assault weapons, mandatory safety training and ammunition.

Murthy's confirmation is a victory for public health and common sense, and a loss for one of America's most influential special interest groups, the NRA.

PFAW

Wall Street Giveaway in Spending Bill is Big Money Political Influence at its Worst

It’s hard to know where to begin when running down the list of harmful special interest giveaways in the omnibus spending bill narrowly passed by the House yesterday. Earlier this week, we wrote about a rider in the bill that would allow the amount of money rich donors can give to political parties to skyrocket. The legislation moving through Congress also includes a provision that would have the effect of allowing mountaintop mining companies to keep filling Appalachian streams with toxic waste. Yet another rider is a “Wall Street giveaway,” actually drafted by Citigroup’s lobbyists, that would repeal a piece of financial regulation and let banks take part in more kinds of high-risk trading deals with government backed money.

Sen. Elizabeth Warren railed against the Wall Street rider on the Senate floor:

[Americans] see a Congress that works just fine for the big guys, but it won’t lift a finger to help them. If big companies can deploy armies of lawyers and lobbyists to get the Congress to vote for special deals that benefit themselves, then we will simply confirm the view of the American people that the system is rigged.

It is, as Sen. Warren says, hard not to think that “the system is rigged” when members of Congress use a spending bill to sneak through major policy shifts that benefit wealthy political donors, Wall Street executives, and big businesses, while leaving the majority of Americans with an even weaker political voice.

This is especially true when you consider that those who voted for the rider-filled spending deal were, by and large, the members who received bigger contributions from the benefitting industries. The Washington Post compared the House spending bill votes with Center for Responsive Politics data on campaign contributions to each representative from the finance, insurance, and real estate industries. What they found is disheartening, but not surprising:

On average, members of Congress who voted yes received $322,000 from those industries. Those who voted no? $162,000.

And that doesn’t even take into account the dark money whose source is unknown to the public (but likely known by the officials who benefit from it).

It’s one more example of the influence that money can buy in our current system, where big gifts from corporate spenders pave the way for corporate political victories. When Wall Street lobbyists can literally write the laws they want, no matter the impact on ordinary Americans, it’s clear that we need serious reform to the rules governing money in politics.
 

PFAW

New Report Highlights the Racial Inequities of Big Money in Politics

The infusion of big money into our democracy is helping to perpetuate racial inequalities, according to a report released yesterday by Demos. As we have seen in recent election cycles, the most aggressive and influential political donors are overwhelmingly white and affluent, paving the way for elected officials to be beholden to a donor class and far less concerned about the needs of most Americans.

While the economic biases of money in politics are clear, the report, called “Stacked Deck: How the Racial Bias in Our Big Money Political System Undermines Our Democracy and Our Economy,” also highlights some unsettling information on how elections dominated by wealthy special interests impede efforts for a more racially diverse and responsive political system:

Elections funded primarily by wealthy, white donors mean that candidates as a whole are less likely to prioritize the needs of people of color; and that candidates of color are less likely to run for elected office, raise less money when they do, and are less likely to win. Ultimately, people of color are not adequately represented by elected officials.

• A recent study of black candidate success concluded that “the underrepresentation of blacks is driven by constraints on their entry onto the ballot” and that the level of resources in the black community is “an important factor for shaping the size of the black  candidate pool.”

• Candidates of color raised 47 percent less money than white candidates in 2006 state legislative races, and 64 percent less in the South.

• Latino candidates for state House raised less money than non-Latinos in 67 percent of the states where Latinos ran in the 2004 election cycle.

• In a typical election cycle, 90 percent or more of the candidates who raise the most money win their races.

• Ninety percent of our elected leaders are white, despite the fact that people of color are 37 percent of the U.S. population.

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• In a 2011 study, researchers found that white state legislators of both major political parties were less likely to reply to letters received from assumed constituents with apparently African American names (like “DeShawn Jackson”).

Tellingly, a governing body that skews heavily white also creates policies that can have detrimental impacts on racial minorities. The report also compiled case studies that demonstrate how big money disrupts progress on racial equality on a variety of issues, including:

• Private Prisons and Incarceration. Incarceration in the U.S. has increased by 500 percent over the past three decades, with people of color vastly over-represented in our nation’s prisons and jails. This is the result of policies that have put more people in jail for longer sentences despite dropping crime rates, policies boosting the bottom line of the growing private prison industry.

• The Subprime Lending Crisis. Because of rampant discriminatory lending practices, the subprime-lending crisis hit people of color especially hard. Banks and other mortgage lenders used millions of dollars of political contributions and lobbying to weaken and circumvent consumer-friendly regulations, resulting in the largest loss of wealth in communities of color in American history.

• The Minimum Wage. The federal minimum wage has remained stagnant, losing real value over the past several decades. Raising the wage to $10.10 an hour would lift more than 3.5 million workers of color out of poverty, but Congress has instead prioritized policies favored by the wealthy.

As money continues to dominate the process by which we elected public officials, our government moves further away from the true definition of a democracy and continue to serve only a very narrow segment of Americans.
 

PFAW Foundation

Twelve More Judges to Go

When the Senate Judiciary Committee advanced three more judicial nominees to the Senate floor yesterday, the number of judges waiting to be confirmed went from nine to 12. There is no reason to push them off till next year. In fact, there is every reason to confirm them now, before senators end the 113th Congress and head home.

One of the three nominees advanced yesterday, Joan Azrack, would fill a vacancy in New York that the Administrative Office of U.S. Courts has formally designated a judicial emergency. That means there simply aren't enough judges there to get the work done in a timely manner. For Americans who count on having their day in court, that fundamental right is being undermined every day this vacancy remains unfilled.

Elizabeth Dillon would be the first woman to serve as a federal judge in Virginia's Western District. In fact, she would be the first federal judge in that district who isn't a white man. Why wait until next year to break that barrier?

Loretta Biggs would be the first African American woman federal judge in North Carolina. In fact, the state has only had two African American federal judges in its history, and neither of them is still in active service. While Biggs has the support of both her home state senators, we don't know if that would be true next year, when Republican Thom Tillis replaces Kay Hagan.

Why would anyone force a long and unnecessary delay on confirming these three highly qualified nominees, or the nine others who could have been confirmed weeks ago?

PFAW

Proposed Spending Bill Would Let Wealthy Political Donors Give Even More

Just what our country needs after the most expensive midterms in history: a bill that lets big political donors spend even more money.

The government spending bill released by the House last night includes a rider that would drastically increase the amount of money the super-rich can give to national party committees. The language included in the spending deal would allow wealthy donors to give ten times the current limit to political parties.

Adam Smith at Public Campaign put the potential new limits into perspective in a powerful graphic:

With the new annual individual party limit expected to be more than six times the median household income, it’s clear that this shift is simply about handing the wealthiest political donors even more power and access. A tiny fraction of the country already dominates political spending; these changes would make it even harder for ordinary Americans to have a seat at the table.

What’s more, these provisions, which would have major implications for the health of our democratic process, were not even debated by Congress. They were simply snuck into an omnibus spending bill – a quiet attack that threatens to further undermine what’s left of our country’s common-sense rules limiting big money in politics.

After the midterm elections, exit polls found that nearly two-thirds of voters said that our system already favors the wealthy. Americans are ready for a government that works for everyone. But it looks like what we’re getting instead are Congressional leaders increasing committed to big money donors at the expense of everyone else.

PFAW

New Study Examines Corporate Echo Chamber at Supreme Court

Reuters has released a study showing that a relatively small number of elite attorneys have been involved in 43% of the cases the Supreme Court has taken over the past few years. The Reuters study, entitled The Echo Chamber, shows that most of these lawyers represent corporate interests, and their participation in a case makes it much more likely that the Court will agree to hear it.

A Reuters examination of nine years of cases shows that 66 of the 17,000 lawyers who petitioned the Supreme Court succeeded at getting their clients' appeals heard at a remarkable rate. Their appeals were at least six times more likely to be accepted by the court than were all others filed by private lawyers during that period.

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The Reuters examination of the Supreme Court's docket, the most comprehensive ever, suggests that the justices essentially have added a new criterion to whether the court takes an appeal – one that goes beyond the merits of a case and extends to the merits of the lawyer who is bringing it.

The results: a decided advantage for corporate America, and a growing insularity at the court. Some legal experts contend that the reliance on a small cluster of specialists, most working on behalf of businesses, has turned the Supreme Court into an echo chamber – a place where an elite group of jurists embraces an elite group of lawyers who reinforce narrow views of how the law should be construed.

Of the 66 most successful lawyers, 51 worked for law firms that primarily represented corporate interests. In cases pitting the interests of customers, employees or other individuals against those of companies, a leading attorney was three times more likely to launch an appeal for business than for an individual, Reuters found.

In a SCOTUSBlog interview, study co-author Joan Biskupic discusses the outsized influence of corporate interests, including how it makes it harder for ordinary people to find the same caliber of high-powered lawyer as the corporate interests have available to them.

The domination of the docket by corporate interests has consequences for consumer and employee cases. Because corporate lawyers can't take those cases (based on firm-wide conflicts of interest), individuals are often left to a smaller, and collectively less successful, pool of lawyers.

In a nation founded upon Equal Justice Under Law, any indication that everyday Americans are systemically disadvantaged against powerful corporations at the Supreme Court must be taken seriously. Workers, consumers, and small business owners should certainly have the best legal representation possible.

Americans should also have the best judges possible, be it on the Supreme Court or any other court. Unfortunately, we have seen for some time now that a small but consistent majority of the Supreme Court is made up of conservative ideologues who are far more likely than not to rule in favor of corporate interests, even if they have to bend the law and ignore logic in order to do so.

That needs to change.

PFAW Foundation

Pregnant Workers' Rights at the Supreme Court

Today, the Supreme Court heard oral arguments in Peggy Young v. UPS, a case that will affect just how much protection is afforded by a federal law protecting pregnant workers from job discrimination. This is one of the cases discussed in PFAW Foundation's preview for the current Supreme Court term.

Young, a pregnant UPS driver, was told by her doctor that she shouldn't lift more than 20 pounds while she was pregnant. When the company refused her request for temporary light duty, she was forced to choose between her job and her pregnancy. She chose the latter, and she had to take unpaid leave for the rest of her pregnancy, which also meant a temporary loss of her health insurance.

UPS changed its policy a few weeks ago, and it now accommodates women in Young's position.  But the company claims its original policy was legal and not in violation of the 1978 Pregnancy Discrimination Act. The PDA says that job discrimination on the basis of pregnancy is a form of illegal sex discrimination (a point that should have been obvious, except the Supreme Court had interpreted Title VII otherwise a couple of years earlier).

But it does more than that: a second clause also specifically mandates the pregnant women "shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work."

Since UPS gave light duty to certain other workers who are similar in their ability or inability to work – ones with an on-the-job injury, the loss of their driving certification, or a permanent disability – Young sued, saying that her employer's treatment of her violated the PDA. But UPS says its policy was legal because it was "pregnancy-blind:" They claim they were treating Young the same way they'd have treated a non-pregnant employee whose injury doesn't fit any of the above conditions.

The Washington Post reports that at this morning's oral arguments, the Court "tread somewhat gingerly through an hour of technical arguments."

Justices Elena Kagan and Ruth Bader Ginsburg dominated the questioning of the company's lawyer, Caitlin J. Halligan.

Kagan said that when Congress passed the Pregnancy Discrimination Act of 1978, it meant to abolish the "stereotype" of women as marginal workers. She said the act forbids policies that put all pregnant women "on one side of the line," and instead forces employers to prove their actions are not discriminatory.

Justice Ginsburg also had a retort to one of Justice Scalia's criticisms of Young's arguments:

Justice Antonin Scalia [said that Young] seemed to be seeking special recognition under the 1978 act, akin to "most-favored nation" status.

Ginsburg later countered that the UPS policy seemed to convey "least-favored nation" status.

The question for the Court is what Congress intended when it passed the Pregnancy Discrimination Act. Did it truly intend for it to be so easy for companies like UPS to force women to choose between their job and their pregnancy? Or did Congress intend to protect pregnant workers who need their employers to make some reasonable temporary accommodation so they don't have to quit their jobs, lose their health insurance, and deprive their families of much-needed income?

PFAW Foundation

Soon-To-Be Senate Majority Leader McConnell Tests the Waters on Further Gutting Campaign Finance Laws

Sen. Mitch McConnell (R-KY), who is poised to become the new Senate Majority Leader when Republicans take over the Senate in January, is well known for his opposition to limits on big money in politics – whether through his unabashed support for the disastrous Citizens United ruling or his filibusters to prevent Senate votes on laws requiring more campaign finance disclosure. Now, before he even becomes Majority Leader, McConnell has already tried to further dismantle commonsense rules on money in elections.

McConnell attempted to add a rider to an omnibus appropriations bill – which must pass in order to prevent another government shutdown – that would “effectively chip away at direct contribution limits for candidates.” After opposition from sitting Senate Majority Leader Harry Reid (D-NV) and Rules Committee Chairman Charles Schumer (D-NY), Senator McConnell has backed off his proposal for now. Nonetheless, the writing is on the wall. McConnell wants to further deregulate the spending of private money in political campaigns.

Under current law, contributions to candidates in a two-year cycle are limited to $5,200 per donor. Donors can also give $20,000 to state party committees and more than $60,000 to national party committees. Currently candidates are limited in their ability to coordinate spending with the party committees that support them. If passed, McConnell’s measure would have effectively allowed party committees to fully coordinate with candidates in spending campaign funds.

While Senate Democrats rejected the rider, Sen. McConnell’s actions clearly show his intentions to further roll back existing campaign finance laws and threaten efforts to limit big money in politics when Republicans take charge of the Senate in January. This is likely a preview of what’s in store for us in the coming years.

PFAW

Federal Judge Gives History Lesson on Anti-Gay Discrimination

The federal court ruling striking down Mississippi’s ban on same-sex couples getting married is worth reading for many reasons. Paul wrote earlier about U.S. District Judge Carlton Reeves’s compelling explanation of the role of the courts in protecting Americans’ constitutional rights. The ruling is also filled with rich historical detail about the extent to which the state of Mississippi and the federal government have discriminated against LGBT citizens over the years, as well as the ways in which groups like the Ku Klux Klan and the notorious Mississippi State Sovereignty Commission used anti-gay rhetoric and innuendo in their attacks on African American civil rights leaders and institutions.

This history is an important rebuttal to bogus claims by anti-gay activists that gay people do not need to have their rights protected in law because they have never suffered from discrimination.

Quotes from the opinion, with citations removed for readability:

Any claim that Mississippians quietly accommodated gay and lesbian citizens could no longer be made in the 1960s, when prejudice against homosexuals (and other groups) became more visible during the civil rights movement. Segregationists called their opponents “racial  perverts,” while U.S. Marshals – summoned to enforce civil rights – were labeled “sadists and  perverts.” Klan propaganda tied together “Communists, homosexuals, and Jews, fornicators and liberals and angry blacks – infidels all.”

One Klan photo showed a black man touching the crotch of the white man sitting next to him, attempting to make the link between racial equality and homosexuality explicit.

Civil rights leaders had predicted the attack. In selecting the Freedom Riders, James Farmer had conducted interviews to weed out “Communists, homosexuals, [and] drug addicts.” “We had to screen them very carefully because we knew that if they found anything to throw at us, they would throw it,” he explained.

This reflected society’s notion that homosexuals were “undesirables.” It also placed civil rights leaders in the position of seeking rights for one disenfranchised group while simultaneously seeking to avoid association with another disenfranchised group. Mississippians opposed to integration harassed several civil rights leaders for their homosexuality. Bill Higgs was a prominent gay Mississippi civil rights lawyer. He was targeted for his activism, convicted in absentia of delinquency of a minor, and threatened with “unlimited  jailings” should he ever return to Mississippi.

He never did.

Reeves also discusses the case of Bayard Rustin, the openly gay African American civil rights activist who organized the 1963 March on Washington at which Martin Luther King, Jr. delivered his famous “I Have a Dream” speech.

The most interesting part of Rustin’s story, though – and the reason why he merits more discussion here – is that he was subjected to anti-gay discrimination by both white and black people, majority and minority alike. Congressman Adam Clayton Powell, a black Democrat, threatened to feed the media a false story that Rustin was having an affair with Martin Luther King, Jr., unless Dr. King canceled a protest at the Democratic National Convention.

Other persons within the civil rights movement were similarly “put off by Rustin’s homosexuality.” Roy Wilkins, an NAACP executive, “was particularly nasty to Bayard Rustin – very hostile,” in part because he “was very nervous about Bayard’s homosexuality.” Dr. King eventually had Rustin resign “because of persistent criticism of Rustin’s homosexuality and Communist ties and because of Congressman Adam Clayton Powell’s threat.”

Rustin reemerged years later as one of the principal organizers of the March on Washington for Jobs and Freedom. A. Philip Randolph and Dr. King wanted Rustin as the march’s chief organizer, but Wilkins pushed back “because [Rustin] was gay . . . something which in particular would offend J. Edgar Hoover.” The group ultimately “decided Randolph would be in charge of the march, that Rustin would be the principal organizer, but that he would stay somewhat in the background.”

The concern about offending Hoover was prescient, as the FBI Director and other top officials soon moved to use Rustin’s homosexuality against him. In August 1963, FBI Director J. Edgar Hoover, Attorney General Robert F. Kennedy, and President John F. Kennedy urgently reviewed the transcript of a FBI wiretap in which Dr. King acknowledged Rustin’s homosexuality. A day later, Senator Strom Thurmond of South Carolina “rose in the Senate to denounce Rustin for sexual perversion, vagrancy, and lewdness.” FBI “headquarters badgered the field offices for new details” of Rustin’s sex life for months.

As Reeves makes clear, this kind of persecution was not only reserved for civil rights activists.

Rustin’s story speaks to the long tradition of Americans from all walks of life uniting to discriminate against homosexuals. It did not matter if one was liberal or conservative, segregationist or civil rights leader, Democrat or Republican; homosexuals were “the other.” Being homosexual invited scrutiny and professional consequences.

These consequences befell quite a few Mississippians. Ted Russell, the conductor of the Jackson Symphony Orchestra, lost his job and his Belhaven College faculty position after he was caught in a gay sex sting by the Jackson Police Department. In the early 1980s, Congressman Jon Hinson drew scrutiny for frequenting an X-rated gay movie theater in Washington, D.C., and although he won reelection, he resigned when he returned to Washington and was caught performing gay sex acts in a Capitol Hill bathroom. As early as 1950, the State’s flagship institution of higher learning, the University of Mississippi, “forced three homosexual students and one faculty member to leave the university” because it “did not tolerate homosexuality.” Lesbian instructors at Mississippi University for Women were pushed out of their jobs, while students at other Mississippi public universities were expelled for their homosexuality. A 1979 article on gay Jacksonians said “most” remained closeted because “they fear losing their jobs, friends and families.”

Reeves discusses the anti-gay actions of the Mississippi State Sovereignty Commission, which was created in 1956 to maintain racial segregation by any means necessary.

Sovereignty Commission “[i]nvestigators and local officials also targeted local blacks and outsiders involved in civil rights activities as being sexually deviant.” They singled out Rust College, a private historically black institution, on reports that instructors there were “homosexuals and racial agitators.”

Those with power took smaller, yet meaningful, actions to discourage gay organizing and association in Mississippi. The State refused to let gay rights organizations incorporate as nonprofits. The newspaper at Mississippi State University – student-led, with an elected editor – refused to print a gay organization’s advertisement notifying gay and lesbian students of an off-campus “Gay Center” offering “counseling, legal aid and a library of homosexual literature. An advisor to the U.S. Commission on Civil Rights concluded that the Jackson Police Department took “a series . . . of maneuvers to harass members of Jackson’s gay community.” “As of 1985 not a single university campus in Mississippi recognized a lesbian and gay student group.”

Reeves’s ruling also makes clear that official discrimination is not only in the state’s past.

In 1990, the Mississippi Supreme Court affirmed a trial judge who declared that a mother, who was a lesbian, could not visit her children in the presence of her female partner. In Weigand v. Houghton, the Mississippi Supreme Court affirmed a trial judge who refused residential custody to a father in large part because he was in a long-term relationship with another man. A dissent complained that the father’s sexuality had impaired the court’s judgment, since the child would now have to live with “the unemployed stepfather [who] is a convicted felon, drinker, drug-taker, adulterer, wife-beater, and child-threatener, and . . . the mother [who] has been transitory, works two jobs, and has limited time with the child.”

 In 2002, one of Mississippi’s justice court judges, frustrated with advances in gay rights in California, Vermont, and Hawaii, “opined that homosexuals belong in mental institutions.” Although he was reprimanded and fined by the Mississippi Commission on Judicial Performance, the Mississippi Supreme Court vacated the sanctions. It was more important for gay citizens to know that their judge was biased and seek his recusal than to “forc[e] judges to conceal their prejudice against gays and lesbians,” it wrote. The “Commission urges us to ‘calm the waters’ when, as the guardians of this state’s judicial system, we should be helping our citizens to spot the crocodiles.”

Reeves details a number of recent complaints and lawsuits challenging discriminatory treatment by state and local governments as well as legal inequities such as the fact that Mississippi law permits a single person to adopt a child but not gay or lesbian couples.

This kind of restriction was once supported by pseudoscience. We now recognize that it actually “harms the children, by telling them they don’t have two parents, like other children, and harms the parent who is not the adoptive parent by depriving him or her of the legal status of a parent.”

Reeves concludes the historical section of the ruling this way:

“The past is never dead. It’s not even past.” That is as true here as anywhere else. Seven centuries of strong objections to homosexual conduct have resulted in a constellation of State laws that treat gay and lesbian Mississippians as lesser, “other” people. Thus, it is easy to conclude that they have suffered through a long and unfortunate history of discrimination.

PFAW Foundation