PEOPLE FOR BLOG

Supreme Court to Hear Challenges to ACA's Contraception Coverage

To no one's surprise, the Supreme Court announced today that it will be deciding the legality of the ACA's provision regarding insurance coverage for contraception, which opponents claim violates the religious liberty of for-profit corporations and their owners. The Court will be hearing two cases together: Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius. We will be hearing and reading a lot about these cases in the next few months.

At issue is whether the law violates the Religious Freedom Restoration Act or the Free Exercise Clause of the First Amendment. Under RFRA, a federal law is invalid if it imposes a substantial burden on religious liberty, unless it is the least restrictive means to serve a compelling government interest. (This law was passed in 1993 to recreate the substantial scrutiny laws had faced under the Free Exercise Clause until the Supreme Court altered the test in 1990.)

Hobby Lobby is an arts and crafts chain store with 500 stores and 13,000 full-time employees. The Green family who own and operate Hobby Lobby also do business through a corporation called Mardel, a for-profit business operating 35 Christian bookstores with almost 400 employees. The Greens and their corporations argue that the contraception coverage provision poses a substantial burden on their religious liberty in violation of RFRA.

Perhaps the most dramatic claim made in these cases is that for-profit corporations operating hundreds of stores and with thousands of employees have religious liberty interests at all. That's what the Tenth Circuit ruled in the Hobby Lobby case, citing Citizens United, and concluding that the mandate fails under RFRA.

The claim that for-profit corporations have religious rights was rejected by the Third Circuit in the Conestoga Wood Specialties case. That court also ruled that the corporation's family owners don't suffer a religious liberty violation because the law's coverage requirement and the financial penalty for noncompliance fall not upon them as individuals, but upon the corporation. According to the lower court, since they chose to engage in business using the corporate form, accepting all the financial benefits that brings, they cannot "move freely between corporate and individual status to gain the advantages and avoid the disadvantages of the respective forms."

It now appears that the Supreme Court will make important rulings on the religious liberty interests of both for-profit businesses and the individuals who own them.

People can and do disagree on the interplay between individuals' religious liberty and general laws that go against people's religious beliefs. PFAW Foundation's "Twelve Rules for Mixing Religion and Politics" addresses this debate. Government does have the right to demand people and businesses comply with reasonable regulation and social policy, while at the same time, religious liberty is a key constitutional right. The debate over their interplay should be held in a way that does not devolve into claims of a "war against religion," which we hear all too often from the far right.

As far as corporate religion is concerned, the five arch-conservative justices who gave us Citizens United and who routinely bend the law to favor corporate interests may see this as an opportunity to strike another blow for "corporate personhood" and against the workers who the ACA is designed to protect.

PFAW Foundation

With Warren’s Endorsement, 100% of MA delegation Supports Amending the Constitution to Overturn Citizens United

On Wednesday, Senator Elizabeth Warren co-sponsored Senator Udall’s amendment proposal, SJRES 19, adding a key progressive voice to the amendment movement. With Warren’s endorsement, the entire Massachusetts’s congressional delegation is now in support of amending the Constitution to overturn Citizens United and related cases.

In a speech two months ago, Senator Warren decried the overwhelming influence of money in politics and noted that “Congress needs power to address all of the ways in which corruption threatens the health of our political system.”  That notion – that Congress and the states should have the constitutional authority to protect the integrity of the legislative and electoral processes – is at the heart of what the Udall proposal does. 

To date, 16 states, 500 cities/towns, and over 150 members of Congress have called for a constitutional amendment.  To learn more about the amendment movement, visit: www.united4thepeople.org.

PFAW Foundation

Harvey Milk’s Legacy

The following is a guest post by Campbell, California Mayor Evan Low, a member of People For the American Way Foundation’s Young Elected Officials Network.

In 2009, I became the youngest openly gay mayor as well as the youngest Asian-American mayor in the country. Some journalists wrote about how I was making history, but I like to point out that I was preceded by a number of other courageous “firsts.”

I became mayor 35 years after Kathy Kozachenko was the first openly LGBT person elected to public office, and 32 years after Harvey Milk – affectionately known as “the mayor of Castro Street” – was elected to the San Francisco Board of Supervisors in the same state I serve today.

This week marks the anniversary of the tragic end of Milk’s short time in office, when he and Mayor George Moscone were shot and killed by Supervisor Dan White. But the legacy of Harvey Milk and other LGBT trailblazers is very much alive. Today there are more than 500 openly LGBT elected or appointed officials serving our country. Through their service and that of public officials representing other marginalized communities, it is clear that our democracy works best when our lawmakers reflect the nation’s diversity.

That’s not to say that things are always easy for LGBT elected officials. Like Milk, I have received my share of hate mail, with messages like: “We don’t want the homosexual agenda in our community.” As I have told reporters before, I don’t know what is on that so-called agenda, other than basic equality for all people.

One issue that’s certainly on my agenda is the end of the FDA’s ban on blood donations from gay and bisexual men. In a petition that now has more than 62,000 supporters, I wrote:

…recently, I hosted a blood drive on city property, but was banned from donating blood myself.

As the mayor of Campbell, providing for the welfare of the general public is a top priority. As a gay man, however, I am conflicted in my advocacy for blood drives. Under current U.S. Food and Drug Administration guidelines, a man who has sex with another man is deferred for life from donating blood.  The ban was imposed in 1983 when there were no reliable tests for screening blood for HIV/AIDS.  It was also made during a time of mass medical confusion and cultural homophobia associated with HIV/AIDS.  The current FDA ban is wildly outdated and perpetuates unfair labels against gay and bisexual men that live on through decades of discrimination.

These kinds of stereotypes are not unlike the ones Harvey Milk was fighting nearly four decades ago, and why he, like I do today, encouraged LGBT people to come out whenever possible – to dispel the harmful lies about our community with the truth.  Stuart Milk, nephew of Harvey Milk and founder of the Harvey Milk Foundation, continues his uncle's legacy, and we are so fortunate to have Stuart carry the torch. 

In a tape Milk recorded before his death, he said, “I have never considered myself a candidate. I have always considered myself part of a movement.” I think he would be proud of the movement that lives on in his spirit today.
 

PFAW Foundation

Senators Use PFAW Chart to Show Unprecedented Nature of GOP Obstruction

In their press conference following yesterday’s vote to change the Senate rules on filibusters, Democratic senators used a chart provided by PFAW to outline the extremity and unprecedented nature of the GOP’s obstruction of President Obama’s nominees.

chart-schumer

chart-Reid

Photos by J. Scott Applewhite/Associated Press via The Washington Post

PFAW

Isabel Allende Fights Against Banning of Her Own Book

When the teaching of Isabel Allende’s internationally renowned novel The House of the Spirits was challenged in a North Carolina school district last month, advocates from all corners spoke out in its defense, including PFAW Foundation president Michael Keegan and North Carolina Poet Laureate Joseph Bathanti. Now, Isabel Allende herself has joined the conversation.

Yesterday the School Library Journal reported that Allende has mailed a letter, along with copies of her book, to the Watauga County school board, superintendent, and the principal of Watauga High School.

After acknowledging that being in the position of defending her own book is “unusual and awkward,” Allende points out in her letter that The House of the Spirits is “considered a classic of Latin American literature and it is taught in high schools, colleges, and universities in all Western countries, including the USA for more than two decades.” She expresses concern about the practice of book censorship in general:

Banning of books is a common practice in police states, like Cuba or North Korea, and by religious fundamentalist groups like the Taliban, but I did not expect it in our democracy.

Allende’s letter comes as the book undergoes a multi-step review process in the county. Last month an advisory committee comprised of teachers, students, and parents voted unanimously not to remove the book from the curriculum, but that decision has been appealed.

PFAW Foundation

"Stand Your Ground" Comes To Ohio

On the same day that George Zimmerman appeared in a Florida court for allegedly pointing a shotgun at his girlfriend during a reported domestic dispute, “stand your ground” laws are reaching new levels of absurdity in Ohio. A state House committee approved sweeping gun legislation which would eliminate the duty to retreat if they are safely able to do so before using deadly force in self-defense. Critics have warned this could lead to a “Wild West” situation, encouraging a “shoot first, ask questions later” approach to self-defense. Given that the law already says the use of deadly force in self-defense is acceptable in one’s own home or car and if a safe retreat is not possible, this law seems designed not to improve safety but instead to further an extreme pro-gun agenda that staunchly refuses to accept anylaw restricting the use of weapons. For these legislators, and groups like the NRA and ALEC that support these types of bills, a person’s right to shoot someone they deem a threat, without even attempting to make a safe retreat, seems to be worth more than a potential increase in homicides.

The bill also relaxes other gun control regulations, including a reduction in the number of training hours needed to obtain a concealed handgun license from twelve to four hours. This would make it eight times easier to carry a concealed deadly weapon than to drive a car, which requires a total of 32 hours of training in Ohio.  It also introduces “reciprocity” on concealed handgun licenses, requiring the state to recognize concealed handgun licenses from any state that recognizes those issued by Ohio. This is especially troubling given that the number of concealed carry licenses issued in Ohio is at a record high: in just the first nine months of 2013, more concealed carry permits were issued than during any calendar year since 2004, when authorities started issuing such permits. 

PFAW

Albuquerque says no to dangerous local abortion ban

Last week PFAW invited its activists to join NARAL Pro-Choice America in beating back a dangerous local abortion ban in Albuquerque, New Mexico. These efforts proved successful yesterday, as the people of Albuquerque rejected the first-ever municipal attempt to ban abortion after 20 weeks by a margin of 55-45 percent. NARAL’s Ilyse Hogue welcomed the ballot measure’s defeat:

We hope today's resounding defeat of this abortion ban sends a clear message to the extreme forces around the country now trying to impose their agenda on cities around this country. When voters hear the real stories of real women and families facing these difficult decisions, they understand the danger and complexity of putting government between women and their doctors at these moments.

We stopped anti-choice activists in New Mexico this time, but the fight against growing threats to women’s healthcare access and autonomy continues across the country and in Washington. At a time when conservatives in Congress are trying to push through legislation that would restrict women’s access to reproductive care, yesterday’s victory is significant, but it is just the beginning. Women’s health and freedom are at risk, and we’ll keep fighting for legislation that protects them.

PFAW

The DC Circuit Interview Chuck Grassley Didn't Have

Iowa senator Chuck Grassley went on CNN yesterday to disseminate GOP spin on his party's unprecedented filibusters of three DC Circuit Court nominees. Grassley and his fellow Republicans are blocking the nominees not because they object to the nominees themselves, but because they object to the idea that President Obama is making nominations to fill existing judicial vacancies at all. To defend this nullification strategy, Republicans claim that the DC Circuit's caseload is too low to warrant filling three of its eleven seats. Their caseload argument is both wrong and fundamentally illegitimate.

Here is a partial transcript of Grassley's interview with CNN's Jake Tapper. Well, it's really a transcript of the interview that should have happened. (Areas in bold are things that were not said, but should have been.)

GRASSLEY: [The DC Circuit] is the most underworked circuit of the 12 circuits we have in this country. Their caseload on average is only half what it is -- or their caseload is only half of what it is the average of the other 11 circuits in our country.

TAPPER: So you disagree with Circuit Judge Timothy Tymkovich, the chair of the Judicial Conference's Standing Committee on Judicial Resources, who testified before your committee that because of the DC Circuit's unique caseload, comparisons to the other circuits make no sense?

GRASSLEY: Um, I was hoping you wouldn't ask me that.

TAPPER: And that would be the same Judge Tymkovich who said that the DC Circuit's caseload in fact is not smaller than it was a decade ago, which is when you voted to fill the seats that you now say should be empty.

GRASSLEY: Um, can I phone a friend?

...

TAPPER: Chief Justice Roberts seems to disagree with you in terms of whether or not the appellate court here in DC should have these positions. Wouldn't he know best?

GRASSLEY: He doesn't know best from this standpoint, that we have letters from judges on that very court that said we don't need any more judges or there wouldn't be enough cases to go around.

TAPPER: Actually, the letter you cite doesn't say there shouldn't be new judges. It specifically says there shouldn't be new "judgeships" added to the court, which no one is proposing. So how is that at all relevant? Why do you repeatedly mischaracterize it? And while we're at it, it's an anonymous letter. Why have you consistently refused to enter that letter into the record so people can read it for themselves? Maybe there's more to that and other letters than the one or two sentences that you twist around to buttress your point.

...

GRASSLEY: Now I have a bill in to eliminate nine, ten and 11 and just eliminate one of them, but the other two, we will put in circuits where they're more needed by caseload and then president Obama can have the privilege of appointing judges there. So we are not denying him the right to appoint judges.

TAPPER: Actually, those two other circuits are ones that the Judicial Conference says don't need new judgeships. And the judges on those courts have not asked for new judgeships. And one of the cosponsors of the bill you mention has said that those circuits do not need and should not have new judgeships. So how can you say they need new judgeships?

GRASSLEY: Because the facts don't matter!

TAPPER: Even if you were right on the caseload argument, the law says there are 11 seats on the DC Circuit. Is it legitimate to have the Senate act as if there were only eight seats on the court, just because you say that's what you wish the law said?

GRASSLEY: Hey, we don't like the law, so we can do whatever we want to nullify it. That's what our party is all about, since we can't actually win elections.

Senator Grassley knows that this fight isn't about caseloads or efficiency. It's about nullification.

PFAW

Why Are Arizona’s Senators Holding Up Hearings on Arizona Judges?

Arizona's federal district courts are currently operating with six of their thirteen judgeships not only vacant but also designated as judicial emergencies, so you'd think that the state's senators would want to expedite the process of confirming five nominees to fill those vacancies. But you'd be wrong.

It turns out that far from ensuring that Arizona's half-empty district courts are fully staffed, either Sen. John McCain or Sen. Jeff Flake or both are keeping all five of President Obama's nominees for Arizona's courts from even getting preliminary hearings before the Senate Judiciary Committee. And because of the secrecy of the so-called "blue-slip" process that is delaying these nominations, we don't know which senator is holding up the nominees or even why they are doing so.

Here's what we do know: The Judiciary Committee today announced its agenda for this week's hearing on federal judicial nominees, and conspicuously absent for the second consecutive week were the five Arizona nominees whom the president nominated two months ago. Yet nominees who were named after the Arizonans have been scheduled for hearings.

The committee usually takes up judicial nominations in the order they were made, so when nominees are skipped, it's generally because their home-state senators are using the "blue slip" process to gum up the works. Chairman Patrick Leahy's practice is to not allow a hearing on any judicial nomination until both home-state senators submit a "blue slip" signaling their approval for the process to start….a system that Republican senators have exploited to slow slow down and even torpedoed President Obama's judicial nominees.

So do Senators McCain and Flake have problems with President Obama's five nominees to fill district court vacancies in Arizona? Ordinarily, it would seem unlikely, since these nominations were the result of months of consultations between Sen. McCain and the White House.

President Obama nominated the first of the five Arizona nominees, Rosemary Márquez, way back in 2011, but then-Sen. Jon Kyl blocked her by refusing to submit his "blue slip." When Kyl was replaced by Jeff Flake, Sen. McCain took the lead on judicial nominations in the state, and he, too, blocked Márquez until he could make a deal with the White House to get additional nominees he supported onto the court. In fact, here is what Sen. McCain said in September when, at his suggestion, President Obama nominated Diane Humetewa, Steven Logan, Douglas Rayes, and John Tuchi to join Márquez:

The nominees to serve on the United States District Court for the District of Arizona have demonstrated devotion to public service and commitment to justice, and I believe they are uniquely qualified to address the legal issues facing our state. The recent judicial vacancies in Arizona have created an unsustainable situation for the Court and are a serious impediment to the administration of justice for the people of Arizona. The need to fill these vacancies is critical as the District of Arizona ranks as one of the top ten busiest district courts in the country. I urge the Senate Judiciary Committee to consider these five very capable nominees as soon as possible and allow the full Senate to swiftly confirm them as the district court judges for the District of Arizona.  [emphasis added]

What Sen. McCain said two months ago was right: Arizonans need these judgeships filled yesterday. Arizona has six vacant district court seats out of a total of 12 authorized judgeships (plus a 13th temporary judgeship). All six have been designated as judicial emergencies by the Administrative Office of U.S. Courts, meaning the caseload is so pressing that the work just isn't getting done in a timely manner: Individuals and businesses are in effect being denied their day in court. In fact, the situation is so bad that the Judicial Conference of the United States has asked Congress to create ten additional judgeships in the state: So even if the six current vacancies were filled today, Arizona still needs another ten judges to ensure that justice is done throughout the state. In the interests of Arizonans, the Senate Judiciary Committee should take up and consider these nominations as quickly as possible.

And yet it isn't happening. For the second week in a row, the Judiciary Committee will be hearing from nominees who were nominated after the five Arizonans – including Diane Humetewa, who would become the nation's only serving Native American federal judge.

It looks like McCain and Flake have withheld their blue slips. Have they found a problem with the nominees who McCain recommended and previously supported and who Sen. Flake has said nothing against? Or are they doing the bidding of someone else, perhaps Judiciary Committee senior Republican Chuck Grassley or Senate Minority Leader Mitch McConnell, both of whom have used every procedure in the book to slow down just about any judicial nomination coming out of the Obama White House?

With fewer times available for hearings this year, if the Arizona nominees don't get their hearings this week, they risk being put off until next year.

And for what? We don't know, because Senators McCain and Flake haven't said a thing.

PFAW

More GOP Efforts to Distract from DC Circuit Nullification

The Heritage Foundation has come out with a new effort to distract Americans from the illegitimacy of the GOP's effort to unilaterally eliminate the president's ability to fill vacancies on the DC Circuit.

The right wing's previous arguments on this issue have fallen flat, sometimes hilariously so. Their bogus caseload arguments have been shown multiple times to be both wrong and irrelevant. Chuck Grassley's bill to strip three seats from the DC Circuit and give two seats to courts that (Republicans claim) need them turned into a Keystone Cops routine when one of the bill's cosponsors held those same two circuits out as examples of courts that don't need new judgeships at all. More and more, Americans are recognizing the GOP's actions as part of their greater effort to simply nullify laws and election results they don't like.

So with that as background, along comes the latest distraction: The Heritage Foundation has cherry-picked some stats in an effort to show that Republicans are generally treating President Obama's nominees better than President Bush's were treated (which perhaps is supposed to put the current DC Circuit obstruction in perspective). What they've done is compared the numbers of nominees confirmed between January 20 and November 20 of the fifth year of the president's term, ignoring the 4 years of each presidency up to that point. Well, if President Obama's nominees are getting treated so fairly, maybe we're not supposed to worry about a measly three who are getting filibustered.

But what happens if you don't ignore the "inconvenient" parts? You find that as of this point in their presidencies, Bush had 91% of his judicial nominees confirmed, while Obama has had only 76%. And at this point in their presidencies, the average wait time between committee approval and confirmation was 43 days for Bush nominees, but 107 days for Obama nominees. Although the vast majority of Obama's nominees are consensus choices, their nominations still languish for months. That is a picture of overall obstruction. And the DC Circuit is the latest example, magnified a thousandfold.

But, despite this latest right wing effort to distract, this is not and should not be a fight about numbers. It is a fight about right and wrong, about legitimate and illegitimate ways for elected officials to act. It is about whether one party can use the power of obstruction to nullify laws they don't like and nullify the American people's decisions as expressed in elections.

So the Heritage argument isn't just wrong, it's completely irrelevant. Let's talk not about numbers but about what Republicans are doing. And let us call it what is it: Nullification.

PFAW

GOP-Led House Continues to Block Immigration Reform

It has been 140 days of inaction since the Senate passed a bipartisan, comprehensive immigration reform bill that moves us closer to addressing our broken immigration system. But all of this progress has stalled in the GOP-led House, where they have chosen to align with extremists in their party rather than with business, civic and faith groups across the political spectrum that support reform.

This was made clear earlier this week, when Speaker Boehner confirmed that he has “no intentions of every going to conference” with the Senate on its bipartisan immigration legislation, once again showing where House leadership takes its cues. In a report released earlier this summer, PFAW laid out the clear choices facing Republicans as the pressing need for serious immigration fixes looms over families and our economy. While there is a lack of will to act on the part of House GOP leadership, immigration reform activists around the country are not sitting passively by. We are speaking up, planning actions, and calling out those who continue to stand in the way of common-sense reform.

PFAW

Remembering Bobbie Handman

Barbara “Bobbie” Handman, a former Vice President of PFAW and PFAW Foundation, died on Thursday. For years, Bobbie’s creative energy and fierce commitment to the First Amendment shaped the organizations’ free expression work from New York City, where she was based. Bobbie’s long record of advocacy for free expression and the arts was recognized in 1998 when she received the National Medal of Arts from President Bill Clinton.

Hillary Clinton, Bobbie Handman, Bill Clinton

Bobbie’s years at PFAW were part of a long life of political activism. Time after time she responded to would-be censors by rallying well-known actors and writers to participate in public events that affirmed the value of artistic freedom. You can read more about Bobbie’s life and work in the obituary that appears in today’s New York Times. It ends with this quote from Norman Lear: “Bobbie was a lifelong lesson in perseverance. She made New York happen for People For the American Way. And she made everything grander. She dealt in grand.”

People For the American Way extends its heartfelt condolences to Bobbie’s husband Wynn Handman and the rest of their family.

PFAW Foundation

Religious Freedom Anniversary Highlights Divisions Among Current and Former Allies

A symposium on the 20th anniversary of the Religious Freedom Restoration Act hosted by First Amendment advocate Charles Haynes at the Newseum in Washington D.C. on November 6 demonstrated one premise of People For the American Way Foundation’s 12 Rules for Mixing Religion and Politics – that people who support a core constitutional principle like religious liberty can disagree with how that principle should be applied. In recent years, religious conservatives have increasingly charged that those who disagree with them on this line-drawing are tyrannical enemies of faith and freedom.  The RFRA anniversary was a reminder that, as Bill Moyers wrote in his introduction to the 12 Rules, “We can simultaneously share a strong commitment to religious liberty, while disagreeing over the application of that principle in a given circumstance.”

In fact, an almost unimaginably broad coalition worked to pass RFRA in 1993, including People For the American Way and the ACLU, the National Association of Evangelicals and Concerned Women for America, and a huge array of religious and civil rights groups.  Also unimaginable in our political climate: RFRA passed the Senate 97-3 and the House unanimously by voice vote. But divisions within the coalition developed just a few years later and persist today.

RFRA was a response to the Supreme Court’s 1990 Smith decision in a case involving Native Americans who were denied unemployment benefits because they had violated state anti-drug laws through the sacramental use of peyote.  The Court ruled that as long as the law in question was applied generally and not designed to target a particular religious practice, there was no real recourse for people whose exercise of religion was restricted. The decision toppled long-standing precedent and left advocates for religious liberty deeply concerned that religious minorities would suffer if there were no legal requirement for reasonable accommodation of their beliefs.

RFRA states that if a law places a substantial burden on a person’s exercise of religion, the government must demonstrate that the law is serving a compelling interest and does so in the least restrictive way. In 1997, the Supreme Court upheld RFRA as it applies to the federal government, but not to the states.  Efforts to re-mobilize the RFRA coalition to pass a new law failed when civil rights advocates feared that a broad standard could be used to undermine state civil rights laws such as laws against discrimination based on sexual orientation.

Oliver Thomas, a co-chair of the original RFRA coalition, said it is not surprising that RFRA gets less popular as it gets older and its “majestic generalities” get applied in contentious cases. Organizations that were allies in passing RFRA are now on both sides of political and legal disagreements about how its standards should apply in a variety of situations, including the mandate under the Affordable Care Act that insurance plans include contraception, the proposed Employment Non Discrimination Act that just passed the Senate, and the advance of marriage equality.  Even among ENDA’s backers there are disagreements about the nature and extent of religious exemptions in the bill.

The first part of the anniversary symposium, which included PFAW Foundation Board Member Rabbi David Saperstein, presented an insider view of RFRA’s history: the development of the RFRA coalition, the politics of writing the law and building congressional support.  One historical tidbit: coalition members had to work hard to overcome objections raised by the U.S. Conference of Catholic Bishops, who feared the law might somehow give a weapon to their opponents on abortion rights issues.  Rep. Henry Hyde told coalition members that the bill would not move until they addressed the bishops’ concerns.

That history is particularly interesting given that conservative Catholics are now using RFRA to challenge the contraception mandate.  A discussion of the contraception mandate in the Affordable Care Act featured Lori Windham from the Becket Fund for Religious Liberty, which represents a number of companies, business owners, and organizations challenging the mandate, and Dan Mach of the ACLU Program on Freedom of Religion and Belief, which argues that the contraception requirement does not substantially burden the religious freedom of business owners, and that the Obama administration’s accommodation for religious organizations is more than sufficient.  Mach noted that while religious liberty is fundamental, it is not absolute, and should not be used to infringe the rights of others. 

Another issue discussed by the panelists was whether RFRA protects for-profit corporations – not the owners, but the corporation itself as an entity.  Some of the panelists discussing RFRA’s history agreed that conversation about violations of religious liberty were focused on individual people, not for-profit corporations, though some said the debate on RFRA and related laws assumed that companies would be covered.  The Becket Fund’s Windham made a case for including such corporations with RFRA’s protections, saying constitutional rights shouldn’t depend on your tax status. The Constitutional Accountability Center has argued otherwise.

Doug Laycock, a University of Virginia law professor, is among the most prominent legal scholars on religious liberty.  He finds himself positioned on differing sides in various culture war battles. Just a day before the anniversary symposium, Laycock argued before the Supreme Court, representing people who are challenging the practice of sectarian prayer at city council meetings in the Town of Greece case.  In that case he stood with advocates of strong church-state separation. On other issues, such as whether a business owner should have the right not to provide services related to a same-sex wedding, he stands with religious conservatives who are pushing for broad religious exemptions to anti-discrimination laws.

Laycock dismissed right-wing charges that the Obama administration is waging a war on religious liberty. He said the administration has gone to “remarkable lengths” to accommodate religious organizations on the contraception mandate and said he doubts that opponents will be able to convince judges that the current rule creates a substantial burden under RFRA. Obviously, the Becket Fund and other Religious Right legal groups and their clients strongly disagree. Later this month the Supreme Court will consider whether to accept for consideration four cases involving for-profit companies challenging the mandate. Cases involving non-profits have not advanced as far.

A panel on other current controversies placed them in the context of increasing religious pluralism in America, including the rapid growth of “nones” – people who claim to religious affiliation.  One panelist noted that religious and civil rights groups can still find common ground in opposition to laws targeting religious minorities, as many did in opposition to Oklahoma’s anti-Sharia law, which was found unconstitutional earlier this year. But it should be noted that some Religious Right groups have in fact backed such laws, and some opposed the building of the Islamic community center in New York that was deceptively dubbed the “Ground Zero Mosque.”

Laycock worries that culture war battles are weakening Americans’ commitment to religious liberty.  He faults conservative religious groups for continuing to fight legal marriage equality for same-sex couples. But he also believes LGBT rights advocates should be more willing to accept broad religious exemptions. Laycock said that conservatives’ dug-in resistance to equality diminishes the incentives for gay-rights activists to accommodate them.  The challenge, as he sees it: on issues of sexual morality, one side views as a grave evil what the other side views as a fundamental right.  In that climate, tens of millions of Americans believe that “religious liberty” empowers their enemies, and neither side is willing to embrace what Laycock considers “live and let live” solutions.

Marc Stern of the American Jewish Committee agreed with Laycock’s concerns about a winner-take-all approach to religious freedom issues, which he said reflects the broader political climate.  But the courts will continue to undertake the balancing act required by the Constitution and by RFRA when constitutional principles come into tension.  And, he said, once the courts work through issues regarding contraception and LGBT equality, we will all still need to grapple more with larger cultural and legal questions, such as those involving the growing number of nonbelievers who are reshaping America’s religious landscape.

The anniversary symposium, “Restored or Endangered? The State of Religious Freedom,” was sponsored by The Baptist Joint Committee for Religious Liberty, Christian Legal Society, American Jewish Committee, Religious Action Center of Reform Judaism, Union of Orthodox Jewish Congregations, Becket Fund for Religious Liberty and Religious Freedom Center of the Newseum Institute.  

PFAW Foundation

NM School District Restores ‘Neverwhere’ to Curriculum Following PFAW Foundation Advocacy

Last month, PFAW Foundation sent a letter to a school district review committee in Alamogordo, New Mexico urging them to reject attempts to remove Neil Gaiman’s Neverwhere from the English curriculum. Yesterday a local television station, KRQE News 13, reported that the book will indeed be put back into the Alamogordo High School curriculum. A district spokesperson told the School Library Journal that in the review process the book was found to be “educationally suitable, balanced, and age-appropriate for high school students.”

The School Library Journal’s Karyn Peterson provides the backstory:

Use of the novel, which had been a part of the AHS English department’s curriculum for nearly 10 years, was suspended from classrooms in early October after a mother complained to the school board about what she characterized as the book’s “sexual innuendos” and “harsh” language—occurring on a single page of the 400-page novel.  The district then created a review committee and opened a public comment period...

PFAW Foundation was one of the groups that weighed in, encouraging the review committee to uphold the right of all students to “to receive a competitive, rigorous education free from censorship.”

The full text of our letter is below.

October 25, 2013

Dear Members of the Review Committee,

We urge you to reject attempts to remove Neil Gaiman’s Neverwhere from the English curriculum.  We understand that the novel was temporarily removed from the curriculum following the complaint of a parent and will be reviewed by this committee.

Neil Gaiman, whose awards include the Newbery Medal for outstanding children’s literature, is an acclaimed author whose work has been taught in the district for many years. We recognize that school leaders often face difficult decisions that require balancing the concerns of parents with the educational development of students.  However, according to English teacher Pam Thorp’s recent letter in the Alamogordo News, the child of the parent bringing the complaint was offered alternative reading material. While parents have every right to decline reading material for their own children, they should not be allowed to censor the curricula for all students.

Many works of literature tackle mature or challenging topics. Attempting to shield high school students from challenging works robs them of the opportunity to learn from and engage with literature, and sets a dangerous precedent.

We trust that as educators you will uphold the right of all students in Alamogordo public schools to receive a competitive, rigorous education free from censorship. For over 30 years we have worked with school districts to protect students’ right to learn, and are happy to serve as a resource for you in this and any future challenges to school curricula.

Best wishes,

Michael Keegan
President, People For the American Way Foundation

PFAW Foundation

They Tried to Break the Federal Government. Now They're Going After the Courts.

The astounding show of Republican recklessness that led to last month's government shutdown made one thing very clear. The new Republican Party -- the one ruled by the Tea Party -- isn't interested in making our government work. They want to break it.

Now, as if shutting down the government of the United States, furloughing hundreds of thousands of government employees, wasting billions of dollars and threatening to wreck America's economy wasn't enough, Republicans in Congress have set their sights on a new target: our justice system.

Yesterday, Senate Republicans took their campaign against our government to a whole new level when they blocked the nomination of Nina Pillard to the U.S. Court of Appeals for the District of Columbia Circuit, which is widely considered to be the nation's second-highest court behind the Supreme Court.

Pillard is one of President Obama's three nominees to fill vacancies on the D.C. Circuit, which is currently operating with nearly one-third of its active judgeships vacant. All three nominees have extraordinary professional qualifications. All three have support from across the ideological spectrum. Yet Senate Republicans are vowing to filibuster all three simply because they were nominated by President Obama.

One of the most basic functions of the U.S. Senate is to provide "advice and consent" to the president on his nominations to executive agencies and to the federal courts. For most of our country's history, the Senate has generally taken this constitutional order responsibly, using its power to block only nominees whom senators found unqualified or dangerously far out of the mainstream. That is, until now.

The same party that shut down the government in an attempt to nullify a duly-enacted law that it does not like is now trying to prevent a twice-elected president from filling vacancies on an important court -- a duty entrusted to him by the Constitution.

There's a reason Republican obstructionists have targeted the D.C. Circuit. The court has the last word on important federal laws and administrative rules on issues ranging from clean air regulations to workers' rights to cigarette labeling requirements to presidential recess appointments. Basically, just about any area that we regulate through our federal government is going to be affected by the D.C. Circuit. And it is currently dominated by conservative ideologues: nine of the 14 judges on the court (including "active" judges and senior judges who participate in panel decisions) were nominated by Republican presidents seeking to remake the courts in their ideological image.

Republicans want to keep it this way. President Obama has nominated five people to the court, yet Senate Republicans have allowed only one of these nominees to so much as receive a confirmation vote. By comparison, the Senate confirmed four of George W. Bush's nominees to the court and eight of Ronald Reagan's. In fact, the ninth, tenth, and eleventh seats that Republicans today demand remain vacant are ones that they ensured were filled when George W. Bush was president.

To give you an idea of just how conservative this court is as a result, just this month a George W. Bush nominee and a George H.W. Bush nominee ruled that employers who oppose birth control should be able to deny their employees access to affordable contraception through their insurance plans -- an absurd twisting of the true meaning of religious liberty. A few months ago, the court ruled that a law requiring employers to display a poster listing employees' legal rights violates the free speech rights of the employers. No, really!

Unable to win national elections, Republicans are trying to hold on to what power they still have -- and that includes control of the powerful D.C. Circuit. Just like they couldn't accept that the Affordable Care Act was the law of the land, the Tea Party won't admit that Americans chose President Obama to be the one making picks to the federal courts.

The Tea Party thinks that it has some sort of intellectual property claim on the U.S. Constitution. But sometimes I wonder if its leaders have even read it.

Cross-posted from Huffington Post.

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