PEOPLE FOR BLOG

A Liberal Supreme Court Term? Hardly.

In the last week, conservatives lost major cases at the Supreme Court on issues like fair housing, healthcare, nonpartisan redistricting, and marriage equality.  Some are questioning whether the Roberts Court is really all that conservative.  The New York Times’s The Upshot trumpeted The Roberts Court’s Surprising Move Leftward, writing that this term had a greater percentage of liberal decisions than any since 1969.

But this is no liberal court.  It hasn’t even been all that much of a liberal term, certainly not in the way that we saw decades ago.

Take the fair housing case, for instance: Texas Department of Housing and Community Affairs v. The Inclusive Communities Project.  There was unanimity among all 11 circuit courts that had considered the issue that a practice that has an unjustified discriminatory impact can violate the federal Fair Housing Act even when a discriminatory purpose can’t be proved.  Congress had amended the law with this type of “disparate impact” clearly in mind.  Ordinarily, under these circumstances, the Supreme Court never would have heard a case claiming that the Act does not allow for disparate impact cases.  But this is the Roberts Court, and four Justices (the minimum needed to grant certiorari) were clearly hungry to change the law.  Rather than moving the law in a progressive direction, the 5-4 result simply fought off a fringe right-wing legal attack against a long-established civil rights law.  Even so, this case was only one vote away from going in the other direction.

Similarly, King v. Burwell – the Affordable Care Act subsidies case – hardly marks new frontiers in progressive jurisprudence.  The plaintiffs’ attack against the law was laughably weak, and there was no circuit split in the lower courts to resolve.  That the Supreme Court took this case at all was both absurd and ominous.  While the Court rejected the anti-Obamacare activists’ claim 6-3, it is hard to imagine an earlier Court not ruling 9-0, or even refusing to take the case in the first place.  The majority opinion left the law exactly as it was intended and understood when it was passed.

Yesterday’s ruling in Arizona State Legislature v. Arizona Independent Redistricting Commission upholding that state’s nonpartisan redistricting commission shows the same dynamic.  Arizona voters adopted this reform 15 years ago, in response to the damage done by partisanship in the drawing of district lines.  But conservative politicians sought to undo this reform and launched a constitutional attack they thought would find favor in the Roberts Court.  They lost by one vote yesterday, as a 5-4 majority upheld the status quo.

Similarly, in Williams-Yulee v. The Florida Bar, this term saw the Court entertain a conservative attack against a common-sense campaign finance law for judicial elections, one that prohibits state judicial nominees from directly soliciting campaign contributions.  Since the Roberts Court has gone out of its way to undo or undermine longstanding legal precedent supporting efforts to regulate money in politics, many thought the challenge would be successful.  However, by one vote, the Supreme Court chose to uphold the Florida law, one that applies in many other states, as well.

The Court’s four moderates are sometimes able to garner a majority to reject right wing attacks on the law.  That is a far cry from the liberal Court terms of an earlier era, when the Justices expanded the frontiers of liberty and equality, making the stirring promises of the Constitution real for millions of people.  Those were decisions that empowered Americans to vote and effect their will through fair elections, that recognized the essential dignity and liberty of the individual, and that ensured that civil rights statutes were interpreted in ways to carry out Congress’s intent.

So no, the Supreme Court did not just complete a liberal term.  Progressives breathed a sigh of relief after a number of cases this term when the Court didn’t accept invitations to lurch even further to the right.  And the Court did take one important progressive step in affirmatively ruling for marriage equality, although only by a 5-4 vote.  But there is much more work to do if we really want to see a liberal Supreme Court term.

PFAW Foundation

Latest 5-4 Rulings Show Importance of Supreme Court in 2016

The Supreme Court issued its last three opinions of the term this morning.  All three were important.  All three were decided 5-4.  And all three are reminders that no matter what issue you care about, the Supreme Court is a critically important issue in the 2016 elections.

In Arizona State Legislature v. Arizona Independent Redistricting Commission, Justice Ginsburg wrote for a 5-4 majority upholding that state’s voter-passed redistricting reform, in which a commission rather than the state legislature resets district boundaries after each census.  She wrote:

The people of Arizona turned to the initiative to curb the practice of gerrymandering and, thereby, to ensure that Members of Congress would have “an habitual recollection of their dependence on the people.” The Federalist No. 57, at 350 (J. Madison). In so acting, Arizona voters sought to restore “the core principle of republican government,” namely, “that the voters should choose their representatives, not the other way around.” … The Elections Clause does not hinder that endeavor.

In Michigan v. EPA, Justice Scalia wrote for a 5-4 majority striking down EPA regulations of mercury and other toxins emitted from certain types of electric power plants.  EPA studied the issue and determined that these emissions needed to be regulated.  Then, in a separate proceeding, it adopted regulations, carefully taking the costs of regulating into consideration in crafting its rules.  Notwithstanding that, the five conservative Justices ruled that the EPA had been required to consider costs at the start, in its initial decision on whether regulating these particular emissions was appropriate and necessary.

In Glossip v. Gross, the Court, in an opinion written by Justice Alito, ruled that it is not unconstitutionally cruel and unusual to execute someone by lethal injection using midazolam as the initial drug.  That particular drug is supposed to ensure that the person doesn’t feel burning, searing pain when the follow-up drugs causing death are given.  There is evidence that the drug does nothing of the sort, so that people endure what Justice Sotomayor in her dissent calls “the chemical equivalent of being burned at the stake.”

These decisions join a host of other 5-4 rulings this term, including

And let us not forget some of the most notorious 5-4 cases of recent years:

  • Citizens United (opening the flood gates to untold amounts of money in politics);
  • Hobby Lobby (upholding a corporation’s “religious liberty” right to exempt itself from a law protecting women’s health);
  • Shelby County (striking down the heart of the Voting Rights Act).

By 2018, four Justices will be in their 80s, meaning there may be several vacancies during the next president’s term.  Any replacements could cement a hard-right conservative majority that would extend cases like Citizens United and Shelby County and seek to limit the rights of LGBT people that were gained in Obergefell.  Or we could see the end of what our affiliate PFAW Foundation Senior Fellow Jamie Raskin has called The Citizens United Era, so the Court will no longer bend logic and twist the law in order to rule in favor of powerful and corporate interests.

No matter what issue you care about – money in politics, LGBT equality, voting rights, women’s health, the environment, defendants’ rights, the death penalty – the president elected in 2016 will make all the difference, as will the Senate that will either confirm or block the president’s nominees.

On Election Day, it is the Supreme Court that will be on the ballot.

PFAW

PFAW Foundation Rallies #LoveWins

Paul said it best, "Wow."

It was certainly a "Wow" moment as People For the American Way Foundation stood outside the Supreme Court to watch marriage equality become the law of the land.

People For the American Way Foundation at the Supreme Court for Love Wins

Though there were clouds aplenty, the crowd was strong.

Crowd at the Supreme Court for Love Wins

And spirits were high.

Spirits High as Love Wins at the Supreme Court

Spirits High as Love Wins at the Supreme Court

Marriage equality is now.

But the fight for justice is not over.

People For the American Way Foundation Fights for Justice for All

People For the American Way Foundation will keep fighting every day for justice for all.

PFAW Foundation

A Historic Day for Liberty, Equality, and America

Wow.

The Supreme Court has ruled that same-sex couples have a constitutional right to marry.  This day is profoundly American and a testament to our Constitution: Individuals who faced discrimination at the hands of the government turned to the courts to vindicate their rights.  And the Supreme Court did that today, in a ruling that gives justice to the plaintiffs and, in the process, makes real the promises of liberty and equality that are written in our Constitution.

When the American Way works as intended, it is a beautiful thing to see.

As Justice Kennedy describes in his majority opinion in Obergefell v. Hodges, gays and lesbians have for most of American history been scorned, stigmatized, imprisoned, labelled as mentally ill … you name it.  Given the horrific consequences for being openly gay, it is no wonder that for so long, as Kennedy writes, “a truthful declaration by same-sex couples of what was in their hearts had to remain unspoken.”

That is profoundly sad, and it is profoundly unjust.

Fortunately, society has changed over the past few decades.  The Court majority writes:

In the late 20th century, following substantial cultural and political developments, same-sex couples began to lead more open and public lives and to establish families. This development was followed by a quite extensive discussion of the issue in both governmental and private sectors and by a shift in public attitudes toward greater tolerance.

While this is a recent development for lesbian, gay, and bisexual Americans, it is quite a familiar process for America itself.  Indeed, it is the story of America.

This was stated eloquently several years ago when Maryland was debating marriage equality.  The marriage bill’s sponsor, Maryland state senator Rich Madaleno, testified in support of the legislation:

Our state and our nation were founded on principles of fairness and equality. These principles are timeless; unfortunately, their application has not been. Yet every generation of Americans has held out their hand to some who had been left out of the promise of equality – held out their hand and brought them fully into our civil society, saying, “You are not the other. You are us.”

After today’s Supreme Court decision, my place in society as a gay American is profoundly changed as a matter of constitutional law.  I am no longer the other.  I am us.

Today, the system worked.

PFAW Foundation

Protecting Civil Rights from Judicial Attack

To many people’s surprise, the Supreme Court this morning didn’t gut the Fair Housing Act in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project.  Many had feared the far-right conservatives would rule that a practice that has an unjustified discriminatory impact could no longer be judged to violate the FHA unless a discriminatory purpose could be proved.  Such an interpretation would have gone against congressional intent to create a robust legal tool to bring fair housing to everyone in the nation, all 11 circuit courts that have considered the question, and the interpretation of the law by the Department of Housing and Urban Development.

Despite the absence of a circuit split, and despite the fact that Congress had amended the FHA after those judicial decisions with the clear assumption that such “disparate impact” cases would be generated, the Roberts Court had taken identical cases in 2011 and 2013, but the parties settled before the Court could rule.  But at least four justices – the minimum required for the Court to agree to hear a case – clearly wanted to address this issue.

And now we can be pretty sure who they were: today’s four dissenters (the Chief Justice, and Justices Scalia, Thomas, and Alito).

Fortunately, they did not prevail.  Writing for the majority, Justice Kennedy highlighted the vital role played by the Fair Housing Act, both at the time of its passage in 1968 and today, in eliminating “zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification.”

Much progress remains to be made in our Nation’s continuing struggle against racial isolation.  …  The FHA must play an important part in avoiding the [1968] Kerner Commission’s grim prophecy that “[o]ur Nation is moving toward two societies, one black, one white—separate and unequal.” Kerner Commission Report 1.  The Court acknowledges the Fair Housing Act’s continuing role in moving the Nation toward a more integrated society.

For nearly 50 years, the Fair Housing Act has been a critical tool for eliminating discrimination and expanding opportunity to all.  After today, it will remain so.

So much was at stake in this case, and this morning’s 5-4 ruling could easily have gone the other way had one Justice voted differently.  That is much too close for comfort.  Indeed, this second anniversary of the 5-4 Shelby County decision gutting the heart of the Voting Rights Act reminds us that those who value equality and civil rights are too often on the losing side of these 5-4 cases.

PFAW Foundation

Minister Leslie Watson Malachi’s Remarks at Roanoke Voting Rights Rally

Today, on the second anniversary of the Supreme Court’s decision in Shelby County v. Holder, People For the American Way joins a diverse group of civil rights and voting rights advocates in Roanoke, Virginia to rally for a restored Voting Rights Act (VRA).  Minister Leslie Watson Malachi, director of African American Religious Affairs at People For the American Way, is addressing the crowd. Below are her remarks, as prepared.

Hello everyone. I am Minister Leslie Watson Malachi and I’m the director of African American Religious Affairs at People For the American Way.

It’s been two years since the Supreme Court gutted the crown jewel of the Civil Rights Movement. Two years since Justice Scalia claimed that protecting the right to vote somehow represents “racial entitlement.”

The Voting Rights Act, when it was whole, was one of the most important tools we had for confronting a very ugly entitlement: the entitlement of those who think that certain votes and certain voices should matter more than others. It helped interrupt a phenomenon that is still alive and well – the ongoing devaluation of the votes, and the lives, of Black Americans. The racist massacre at Emanuel AME church in Charleston provided a horrific reminder of that reality.

The VRA gave a sense of security and safety that translated beyond just security and safety in the voting booth. After the VRA, we had the election of first-time African Americans in mayoral and gubernatorial seats post Reconstruction. The Voting Rights Act was more than a piece of public policy. It was a statement, enshrined in law, about the value of African American lives and voices.

So far, Congress has failed to restore that statement, those protections. What kind of message does that send?

Chairman Goodlatte, we are here in your backyard to demand that you and your Republican colleagues do better. Stop ignoring racial discrimination at the polls. Stop ignoring the calls from Americans of all political stripes and restore the VRA.

In the past two years, politicians in cities and states that were once protected by the federal oversight of the original VRA have been passing laws that make it harder for people of color to vote. These politicians didn’t waste any time in turning back the clock on progress we’ve made toward making sure that all Americans can participate in our democracy.

Congress shouldn’t waste any more time in doing just the opposite: restoring the Voting Rights Act and protecting every person’s right to cast a vote that counts.

Fifty years ago, courageous men and women died fighting for these protections. They knew that the right to vote is the most precious right we have in a democracy. We can’t let their legacy come undone.

PFAW

Obamacare Comes Out Stronger Than Before

In a decision that surely disappointed far right politicians, a strong 6-3 majority today rejected a pitifully transparent and legally ridiculous effort to destroy Obamacare.

The King v. Burwell plaintiffs claimed that Congress intended to make healthcare insurance subsidies via tax credits available to Americans in certain states (ones where the state exchange was set up by the state itself) but not in others (states where the exchange was set up by the federal government).  Fortunately, six Justices refused to go along with this.

The majority opinion was written by Chief Justice Roberts, and joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan.  They acknowledged that the phrase “established by the state,” if completely stripped of all context, could be interpreted to exclude exchanges established by the federal government.  But looking at congressional intent and the structure of the ACA as a whole, they concluded that – of course – Congress did not mean to deny subsidies to Americans in the federal-exchange states.

While the Court upheld the Fourth Circuit’s judgment against the anti-ACA activists, the legal reasoning isn’t exactly the same.  In fact, the Court closes off a future avenue of attack against Obamacare that the Fourth Circuit had left open.

Specifically, the Fourth Circuit had found the phrase in question ambiguous in meaning.  Therefore, it turned to how it was interpreted by the federal agency charged with interpreting it and carrying out its commands – in this case, the Internal Revenue Service.  Under a doctrine called “Chevron deference,” courts generally defer to agencies’ interpretations of ambiguous statutory commands as long as they are reasonable.  The Fourth Circuit noted that the IRS interprets the ACA to allow subsidies to be made available to people in all states, and it upheld that interpretation as reasonable.

Note that this approach could have left the ACA vulnerable to a future presidential administration proffering a different interpretation – i.e., the ones pushed by the anti-Obamacare plaintiffs and their conservative activist backers.

That threat would seem to be gone.  The Supreme Court noted that the subsidies are a critical component of the congressional plan to reform healthcare, and if it had wanted to delegate a question as critically important as that to a federal agency, it surely would have said so.  So Chevron deference wasn’t even a factor here.

The Court then looked at the statute as a whole and made the only obvious conclusion: Of course Congress did not mean to deny subsidies to people based on whether their state set up its own exchange or instead relied on the federal government to set it up.  That would have disrupted the entire system Congress was setting up:

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.  If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.

Quoting an earlier case, the majority observed that “[w]e cannot interpret federal statutes to negate their own stated purposes."

Even today’s dissenters once acknowledged the majority’s interpretation.  The Chief Justice quotes their dissent in the first ACA case, where they argued the law was unconstitutional.  In that dissent (which Kennedy was also part of), they agreed that “[w]ithout the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”

The majority concludes that the context and structure of the ACA “compel” the interpretation assumed by Congress, the Obama Administration, and everyone else when the law was debated and passed: Subsidies are available in every state.

“Compel.”  And no Chevron deference.  That means a future conservative president cannot direct the IRS to revisit the subsidies issue and thus put Obamacare into a death spiral.  That puts the law on a stronger footing than it was under the Fourth Circuit’s ruling.

Given that the plaintiffs were confident of a 5-4 victory, today’s 6-3 defeat is not just a loss, it is a powerful rebuke.

But this case should never have been before the Court in the first place.  There was no circuit split (a contrary DC Circuit panel ruling had been vacated en banc), and the plaintiffs’ legal reasoning was laughable.  The fact that we went into this morning not knowing what the result would be shows just how much of the Court’s legitimacy the Court’s five conservatives have sacrificed in their effort to remake the law to fit their political ideology.  While today’s ruling is a great outcome, it should not blind anyone to the nature of the Roberts Court overall.

PFAW Foundation

Activists Join Rep. Eleanor Holmes Norton to Protest Bogus ‘Religious Liberty’ Objections to DC Anti-Discrimination Law

The right-wing tactic of pushing discriminatory policies under the guise of religious freedom is nothing new -- we’ve already seen it used to hurt LGBT people in North Carolina, Louisiana, and elsewhere across the country. But now Republican lawmakers are going a step further, by attacking anti-discrimination legislation meant to protect Americans who aren't even represented in Congress.

The legislation is Washington, DC’s Reproductive Health Non-Discrimination Act (RHNDA), which would protect workers from being fired or punished by their employers for things like using birth control, getting pregnant without being married, or having an abortion. DC’s City Council recently passed RHNDA, and now Congress is using its (fundamentally undemocratic) authority to reverse DC’s local laws to repeal it on the grounds that it violates the religious freedom of employers. Last week, the House Appropriations Committee approved a rider that would block DC from using local funds to enforce RHNDA.

Today, Congresswoman Eleanor Holmes Norton (D-DC) held a press conference in DC, where she denounced these congressional attacks and praised the DC employers who have vowed to embrace RHNDA’s protections anyway.

“Republicans do not understand how united this city is against discrimination, and they do not need to; they just need to let the District be the District... Our Republican opponents claim that the Reproductive Health Non-Discrimination Act will allow pro-choice employees of anti-choice organizations to espouse their own personal pro-choice beliefs.  That falsehood must be met with the truth that employees must carry out the mission of their employer.”

Nearly 33,000 people have already signed PFAW’s petition telling Congress not to meddle with DC’s Reproductive Health Non-Discrimination Act.

PFAW

130 Members of Congress Call for Executive Order on Disclosure of Political Spending

Yesterday 130 senators and representatives urged President Obama to issue an executive order requiring companies that receive government contracts to disclose their political spending. A letter signed by more than one hundred representatives highlighted the lack of transparency in our current system and the important steps the president can take to help fix this:

Taxpayers have a right to know where their money is spent and you have the power to ensure that the American people can obtain this information. With public funds come public responsibilities, and any company receiving federal tax dollars should be required by executive order to fully disclose their political spending in a timely and accessible manner.

A letter signed by 26 senators echoed this call, arguing that an executive order would help restore confidence in our political system:

In our view, campaign finance disclosure is another issue that demands immediate action to restore the public’s faith in our democracy.

It’s not just members of Congress who are calling on the president to act. More than 83,000 PFAW members and supporters have signed our petition to the president urging him to issue an executive order. Several thousand more contacted their members of Congress asking them to sign on to the letters sent yesterday.

Right now corporations can spend unlimited amounts of money to influence elections, and they can do so in secret by funneling that spending though “dark money” groups. But if President Obama were to issue an executive order, some of the nation’s biggest corporations – like Exxon Mobil, Lockheed Martin, and any other government contractor – would have to disclose their political spending.

President Obama himself has called for a more transparent and accountable democracy. In his State of the Union address in January, he criticized “dark money for ads that pull us into the gutter” and called for a “better politics.” Now is the president’s chance to help create that “better politics.”

PFAW

Photo Captures Powerful Protest of Confederate Flag Two Months Before Emanuel AME Tragedy

This April, a group of more than 100 progressive African American clergy gathered in Columbia, South Carolina for the Spring Training Institute of People For the American Way Foundation’s African American Ministers Leadership Council. Among a week of trainings, advocacy meetings at the state capitol, and strategic conversations about the Black Lives Matter movement, this ecumenical body of women and men took time to gather together for a prayer in front of the capitol where the confederate flag still waves.

That week, less than two months before our friend and brother Reverend and State Senator Clementa Pinckney, along with members of the congregation, were massacred at Emanuel A.M.E. church by a shooter who embraced the Confederate flag, clergy stood hand in hand in prayer, reflection, and even tears for the removal of this symbol of hate and bigotry.

The public prayer was the culmination of ongoing work led by South Carolina faith leaders like Reverend and State Representative Terry Alexander. Rep. Alexander has long been a guiding voice in this push, meeting with other elected officials and advocating strongly for its removal.

Why did we pray that day that started out with dark clouds and rain and turned into one of sunshine and light? Because the Confederate flag remains a visible, strategically placed reminder of a southern heritage that embraced slavery, segregation and hate. Because a symbol rooted in the dehumanization of Black Americans is still prominently waving at the capitol, still validated by a government body.

We first prayed facing this symbol of disunity – a symbol of the painful past – for a present and future of peace, unity, and prosperity as a people and a country. We then prayed and sang with our backs turned to it, rejecting the division and pain that it continues to represent. In memory of the love and compassion of Senator Pinckney and the eight others, it’s time for the state of South Carolina to do the same.

PFAW Foundation

No One is Tying Pat Toomey's Hands Except Himself

According to the Legal Intelligencer, Chuck Grassley’s staff is telegraphing his plans to delay a committee vote for Third Circuit nominee Phil Restrepo of Pennsylvania:

While no official word has been given that a request for a delay has been made by committee members, Beth Levine, spokeswoman for Sen. Chuck Grassley, R-Iowa, the Judiciary Committee chairman, said in an email that it is safe to assume the confirmation vote for Restrepo will be held over.

Even worse, according to their reporting, Grassley's fellow Republican Senator Pat Toomey is not currently planning on doing anything to prevent a two-week delay in a committee vote to fill this emergency vacancy until after the July 4 recess, even though a second vacancy on the same court opens on July 1.

But Toomey spokeswoman E.R. Anderson said Toomey’s hands are tied because he is not a member of the Judiciary Committee.

“Toomey wants Restrepo confirmed,” Anderson said in an email, but he cannot control the scheduling of votes in the committee.

Of course, as Senator Toomey well knows, no one is claiming that he can “control” the scheduling of votes, and no one is asking him to.

What Pennsylvanians are asking him to do is to speak up on Judge Restrepo’s behalf, to ask Chairman Grassley not to delay the committee vote.  You don’t have to be a committee member to speak up on behalf of a nominee you support.  Senators do that all the time.

Well, maybe not all senators.  Just the ones who put the interests of their constituents and of nominees they support ahead of partisan politics.

PFAW

PFAW Activists Join Hundreds of Thousands in Effort to Kick Big Polluters Out of Climate Talks

This month, our friends at Corporate Accountability International delivered 232,000 petition signatures to the UN Framework Convention on Climate Change in Bonn, Germany demanding that the planet’s biggest polluters be kept out of the climate treaty conversation. Among the signatures calling on the United Nations to keep corporate polluters from influencing climate policy were tens of thousands from PFAW members.


Photo via CAI

For more, check out this post on Daily Kos-- another partner in this action -- by one of the leaders at Corporate Accountability International.

PFAW Foundation

If Judiciary Committee Delays Restrepo Vote, Blame Pat Toomey

The Judiciary Committee has announced that it will hold an executive meeting this Thursday morning, and a vote on Third Circuit nominee L. Felipe Restrepo is on the agenda.

But with very, very few exceptions, President Obama’s judicial nominees have learned that being scheduled for a committee vote is not a guarantee that the vote will happen.  In fact, once Obama became president, Republicans exercised the right of the minority party to have a committee vote “held over” (delayed) by at least a week without cause in all but 12 instances for President Obama’s judicial nominees, which is an unprecedented abuse of the rules.  They have continued this practice as the majority party.

Yet there have been exceptions.  For instance, the nominee to replace Arizona’s murdered Judge Roll did not have her committee vote needlessly held over.  Nor did six Arizona nominees up for a vote on the same day last year at a time when that state was facing a judicial emergency.  In those cases, the state’s senators were willing to ask their fellow Republicans not to hold up vitally important committee votes.  Politics and partisanship took a back seat on those days.

There surely isn’t any doubt about the need to fill the Third Circuit vacancy as soon as possible.  It has been formally designated a judicial emergency by the Administrative Office of U.S. Courts, meaning there just aren’t enough judges to handle the caseload.

Plus there’s a ticking clock: On July 1, Judge Marjorie Rendell will be taking senior status, thus creating yet another vacancy on a court that isn’t effectively handling the first one.  As for Restrepo himself, he has the strong support of his home state senators, Democrat Bob Casey and Republican Pat Toomey.

With the Senate out next week for its Independence Day recess, holding the vote over will delay it by at least two weeks, to July 9.  Why should Judge Restrepo’s committee vote be delayed for two weeks?

This is an opportunity for Pat Toomey to show leadership.  He can – and should – push for a committee vote this week.  If he has any influence among his colleagues, they will listen to him.

Pat Toomey says he supports this nomination.  His words have been wonderful.  But now is the time for deeds, not words.

PFAW

What Are Anti Marriage Equality Forces Really Demanding?

This article originally appeared on TowleRoad.

Political and religious leaders opposed to marriage equality have been ramping up the intensity of their rhetoric in the weeks leading up to the Supreme Court’s imminent decision on the constitutionality of state laws banning same-sex couples from getting legally married. Some have warned of revolutionand civil war if the Supreme Court recognizes that there is no gay exception to the Constitution’s guarantee of fair and equal treatment under the law.

Political and religious leaders opposed to marriage equality have been ramping up the intensity of their rhetoric in the weeks leading up to the Supreme Court’s imminent decision on the constitutionality of state laws banning same-sex couples from getting legally married. Some have warned of revolution and civil war if the Supreme Court recognizes that there is no gay exception to the Constitution’s guarantee of fair and equal treatment under the law.

One recent salvo in this rhetorical campaign was a full page ad in the June 10 Washington Post in the form of an open letter to the Supreme Court. The headline read, “We ask you not to force us to choose between the state and the Laws of God.”

“We are Christians who love America and respect the rule of law,” the ad said, “However, we will not honor any decision by the Supreme Court which will force us to violate a clear biblical understanding of marriage as solely the union of one man and one woman.”

Similar statements can be found in the“Pledge in Solidarity to Defend Marriage”put together by the same people behind thePost ad. And it’s not much different from language in the Manhattan Declaration, a 2009 manifesto written by former National Organization for Marriage chairman Robert George (right) and signed by an array of conservative religious leaders. The Declaration declares that its signers will not “bend to any rule purporting to force us to bless immoral sexual partnerships, treat them as marriages or the equivalent, or refrain from proclaiming the truth, as we know it, about morality and immorality and marriage and the family.”

The Post ad suggested that a pro-equality ruling would “unleash religious persecution and discrimination against people of faith,” a statement that ignores the many people of faith who do support full equality for LGBT people. The ad was signed by a bunch of far-right anti-gay activists. Here’s just a sampling:

Let’s put aside all the preening about Religious Right leaders’ willingness to endure prison and martyrdom and consider what they’re really after.

First, we can dispense with the notion that they’re just looking for a “live and let live” world in which “Gays and lesbians have a right to live as they choose; they don’t have the right to redefine marriage for all of us.” In fact, religious conservatives have opposed every advance in cultural acceptance and legal recognition of the equal rights and dignity of LGBT people, including efforts to protect us in laws targeting violent hate crimes, allow us to serve openly in the military, and prevent us from being discriminated against in the workplace.

Robert George, co-author of the Manhattan Declaration and a founder of the National Organization for Marriage, wrote the legal brief filed by Focus on the Family and the Family Research Council in the Lawrence v Texas case, defending state laws that made gay people de facto criminals. NOM’s current chairman John Eastman said just this month that he hopes Uganda quickly puts its notorious anti-gay law back into force, a law that included penalties of life in prison for repeat offenders. Other right-wing religious leaders have traveled the globe, from South America to the Caribbean, from Uganda to Russia, Eastern Europe to Central Asia, to support laws that make gay people into criminals for living as they choose, sometimes even for advocating on behalf of LGBT people.

Back here in the U.S., conservative evangelical leaders and their allies at the U.S. Conference of Catholic Bishops falsely portray LGBT equality and religious liberty as fundamentally incompatible, a zero-sum game. That’s their justification for opposing civil unions as well as marriage equality – even for opposing laws to protect people from being fired just for being gay.

The reality is that religious liberty has continued to flourish, and our religious landscape has grown more diverse, in the decades thatpublic attitudes toward gay people have shifted dramatically toward equality. There has been no effort to require clergy to marry mixed faith couples if their faith prohibits it, and nobody wants to force any church or priest to marry or give their religious blessing to same-sex couples.

Next, let’s consider whether all this line-in-the-sand drawing is really about the supposed need for clergy, organizations, and business owners to enforce their religious beliefs about marriage in the public arena. The Catholic Church does not give its religious blessing to marriages involving people who have previously been married and divorced, unless the previous marriage is religiously “annulled.” But Catholic organizations are not loudly advocating for the right of a Catholic business owner to treat opposite-sex couples differently based on whether or not their marriages have the church’s blessing.

Similarly, many evangelical leaders say marriage is meant to be between one man and one woman “for life.” Yet in spite of the biblical passage in which Jesus says that a man who divorces his wife, for any reason other than sexual immorality, and marries another woman is committing adultery, there is no clamor from Religious Right leaders celebrating discrimination against people in second and third marriages.

It is clear that a different standard is being applied to same-sex couples. But anti-gay prejudice — animus is the legal term – is not an acceptable basis for discrimination, even if it is grounded in religious belief.

Now, there’s a reason Religious Right leaders are trying to make the conversation around marriage be about the grandmotherly florist who was fined when she declined to provide flowers for a gay couple’s wedding, or the conversation about contraception about the Little Sisters of the Poor, who say they don’t want to facilitate abortion. It’s an effort associate the Right’s agenda with a “live and let live” ideal that is appealing to many Americans, regardless of religion or politics.

But here’s the problem: Once you establish the principle – as Supreme Court conservatives did in their Hobby Lobby decision last year – that business owners as well as individuals and organizations should be able to ignore laws that somehow offend their religious beliefs, you have to figure out how far people will be allowed to run with it. It is not yet clear where the justices will draw the line.

That kind of line-drawing is often challenging when dealing with questions about how the government can accommodate religion without government impermissibly favoring it. Religious denominations and houses of worship have the greatest level of protection against government interference; courts and legislatures wrestle with the status of religiously affiliated nonprofits. Until Hobby Lobby, the Court had never ruled that a for-profit corporation could “exercise religion” in a way that is protected by the Religious Freedom Restoration Act, but now that door has been opened, it is not clear what kinds of anti-LGBT discrimination it could permit.

Anti-equality religious and political leaders have made it clear that they will continue to oppose marriage equality even in the face of a Supreme Court ruling striking down state marriage bans. Some are calling for massive resistance and urging state leaders to refuse to comply with a pro-equality Supreme Court ruling. Professors Douglas NeJaime and Reva B. Siegel have argued in the Yale Law Journal that in such a situation, in which there is a well-organized movement dedicated to pushing the religious exemption further and further, an accommodation may actually be more likely to extend the culture war conflict than resolve it.

It is worth addressing generally fair-minded people who don’t understand why the gay rights movement won’t just be happy with a marriage win and let a few people with religious objections “opt out.” Some people may think it’s no big deal for gay couples to find another florist or baker. For one thing, that approach discounts the humiliation of being turned away from a business, a violation of human dignity that was a motivating force behind laws banning racial discrimination in public accommodation. And it may not be such a small obstacle in smaller, conservative, religiously homogenous communities, where discrimination may flourish if it is invited by law and encouraged by local religious leaders.

Consider the anti-abortion movement as a cautionary tale.

Shortly after the Supreme Court’s ruling in Roe v Wade, laws were passed to allow doctors who had religious objections to performing abortions to refuse to do so without experiencing negative professional consequences. There has been little opposition to such laws. But over the past few decades, at the urging of anti-abortion activists, the scope of that kind of religious exemption has been expanded wildly to include people ever-further removed from the actual abortion procedure, and expanded to include even marginal participation in the provision of contraception. In emergency situations these accommodation could come at high cost, including the life of a patient.

Exemptions have been extended to or claimed by nurses who don’t want to provide care to women after an abortion, pharmacists who don’t want to dispense a morning-after pill prescribed by a woman’s doctor, even a bus driver who refused to take a woman to a Planned Parenthood facility because he said he suspected she was going for an abortion.

NeJaime and Siegel describe these as “complicity-based conscience claims” – claims that are about refusing to do anything that might make one complicit in any way with another person’s behavior that one deems sinful. They note that the concept of complicity has been extended to allow health care providers not to even inform patients that some potential care or information has been withheld from them based on the religious beliefs of an individual or the policies of an institution.

The resistance to complying with the requirement under the Affordable Care Act that insurance plans cover contraception takes the notion of complicity to almost surreal lengths.  Just days after theHobby Lobby decision, the Court’s conservatives sided provisionally with religious conservatives who are arguing that it is a burden on their religious freedom even to inform the government that they are refusing to provide contraceptive coverage, because that would trigger the process by which the coverage would be provided by others. Cases revolving around the simple act of informing the government of an objection are working their way back toward the Supreme Court.

Similarly, some advocates for broad religious exemptions argue that organizations taking taxpayer dollars to provide social services to victims of human trafficking or women who have been victims of rape as a weapon of war should be able to ignore government rules about providing those women with access to the full range of health care they may need. Some groups are saying it would violate their religious freedom even to notify the government when they refuse to provide information or care – such as emergency contraception for teens that have been sexually abused by their traffickers.  But keep the public dollars flowing our way!

Given what we know about the intensity of the anti-gay movement’s opposition to marriage equality, it is not hard to imagine how far that movement could run with the principle that religious beliefs about “traditional” marriage are a legitimate basis for discriminating against same-sex couples. They themselves have claimed as a model the (dismayingly successful) 40-year campaign since Roe v Wade to restrict women’s access to reproductive health care. In the words of the Heritage Foundation’s Ryan Anderson, “Everything the pro-life movement did needs to happen again, but on this new frontier of marriage.”

Where will a similarly aggressive campaign against marriage equality lead? There is a new law in North Carolina allowing magistrates to refuse to marry same-sex couples. A new law in Michigan allows adoption agencies functioning with government money to refuse to place children with same-sex couples.

Will corporations be allowed to refuse to hire someone married to a same-sex spouse based on the beliefs of the people who run the company? Will Catholic hospitals, which play an increasingly significant role in our health care system, be able to refuse to recognize same-sex spouses in medical emergencies?

The progress that LGBT people have made toward full equality has been remarkable. In my lifetime, the federal government had a formal policy to fire “sex perverts” and prevent them from getting federal jobs. In my lifetime, state laws criminalizing same-sex relationships were used to fire people from government jobs and even take parents’ children away from them. Even today, in a majority of the states, gay and lesbian people have no protection against being fired for who they are – or who they marry, even if the Supreme Court makes it illegal to keep those weddings from taking place.  In all too many places, a company could fire an employee who marries a same-sex partner, the way Catholic schools across the country have been doing.

The good news is that Americans are increasingly opposed to anti-gay discrimination. Most of the laws that were proposed this year tolegalize anti-gay discrimination on the basis of religious belief failed – often thanks to the pro-equality voices of business and religious leaders as well as the hard work of LGBT people and their friends and families and our advocacy organizations.

Most informed observers think the Supreme Court will rule in favor of marriage equality. If that’s what happens, it will be a historic victory and cause for celebration. But as the signers of the recent WashingtonPost ad have made clear, it will not be the end of the struggle.

PFAW

PFAW’s Drew Courtney Discusses Jeb Bush on ‘The Big Picture’

On Tuesday, PFAW Communications Director Drew Courtney joined Thom Hartmann on his program ‘The Big Picture’ to talk about Jeb Bush’s far-right agenda. Courtney critiqued Bush’s plans to privatize Social Security, his support of legislation that shamed women, and his stance on immigration.

Courtney challenged Bush’s label as a moderate, explaining his similarities to extreme conservatives like Scott Walker and Rick Santorum:

[Bush] has not just a record of rhetoric around these issues, pushing really ideologically extreme positions, but he has a record as governor showing what he’ll do when he’s in power, and I don’t think there’s any reason to assume he’ll be either more moderate or more responsible or more reasonable in the White House than he was in the Florida governor’s mansion.

Bush’s views on immigration fail to match the “kind things” he says about immigrants and their families, Courtney said. The presidential hopeful does not support a path to citizenship for the millions of undocumented immigrants residing in the country; a recently released Spanish-language ad from PFAW challenges his stance on this issue and on his opposition to raising the minimum wage. Courtney concluded by emphasizing how important it is for communities to realize the true intentions of all 2016 GOP candidates. He explained, “They are pushing radical policies that the Koch brothers love, and we need to make sure people understand that.”

Watch the full video here:

 

PFAW