Right Sees 2016 as Chance to Take Over Supreme Court, Reverse Marriage Equality

Right-wing leaders have spent the past month denouncing as illegitimate and tyrannical the Supreme Court’s June 26 decision that declared state laws banning same-sex couples from getting married to be unconstitutional. In addition to waging a campaign of resistance to the ruling, right-wing activists are looking toward the 2016 presidential elections as a chance to pack the Court with far-right justices who will overturn the decision.

Journalist Paul Waldman argued recently that 2016 will be a Supreme Court election because right-wing voters will be motivated by anger over their losses on marriage and health care, even though “the Roberts Court has given conservatives an enormous amount to be happy about” – gutting the Voting Rights Act and giving corporations and zillionaires the right to spend as much as they want to influence elections, and much more.

Waldman says even though the Court’s conservative are likely to do more damage to workers’ rights and women’s access to health care during the next term, “All that is unlikely to banish the memory of the last couple of weeks from Republicans' minds, and you can bet that the GOP presidential candidates are going to have to promise primary voters that they'll deliver more Supreme Court justices like Alito, and fewer like Anthony Kennedy or even Roberts.”

Indeed, presidential candidates have been making such promises.

  • Jeb Bush told right-wing radio host Hugh Hewitt that he would focus on “people to be Supreme Court justices who have a proven record of judicial restraint.”
  • Donald Trump denounced Jeb Bush for having supported the nomination of Chief Justice John Roberts, even though Roberts has presided over the most corporate-friendly Court in modern history and vigorously dissented from the marriage equality ruling. A Trump advisory said Supreme Court appointments were among the “many failings of both the Bush presidencies.”
  • Ted Cruz has vowed to make the Supreme Court “front and center” in his presidential campaign; he called the Court’s rulings on marriage equality and the Affordable Care Act among the “darkest 24 hours in our nation’s history” and is calling for constitutional amendments to limit Court terms and require justices to face retention elections.
  • Marco Rubio: “The next president of the United States must nominate Supreme Court justices that believe in the original intent of the Constitution and apply that. We need more Scalias and less Sotomayors.”
  • Rick Perry: Former Texas Gov. Rick Perry said he is disappointed with the ruling and pledged to "appoint strict Constitutional conservatives who will apply the law as written."
  • Chris Christie: “If the Christie-type justices had been on that court in the majority, we would have won those cases in the Supreme Court rather than lost them.”
  • Bobby Jindal: "So it's not enough just to get a Republican in the White House, we need to have a Republican that will appoint justices that actually read the Constitution. [Justice Antonin] Scalia said it best on the Obamacare case. He said 'look, this means that words no longer have meanings. This means we've got a court where they don't read the Constitution, they don't read a dictionary.'…"It's time to get some justices that will stop being politicians, stop obeying the public opinion polls, and actually read and obey the Constitution."
  • Mike Huckabee, who has made an attack on “judicial supremacy” the centerpiece of his presidential campaign, said. “I guarantee you in a Huckabee administration there will be very different kind of people appointed to the court.”
  • Scott Walker denounced the Court’s decision on marriage, saying “The states are the proper place for these decisions to be made, and as we have seen repeatedly over the last few days, we will need a conservative president who will appoint men and women to the Court who will faithfully interpret the Constitution and laws of our land without injecting their own political agendas.

Candidates are responding to the demands of right-wing leaders and organizations, who see the 2016 election as a chance to cement right-wing control of the Supreme Court for a generation.

The National Organization for Marriage says that the definition of marriage should be a “pivotal issue” in 2016, and called on Americans to elect a president who will appoint "new justices to the Supreme Court who will have the opportunity to reverse" the decision to legalize same-sex marriage nationwide.

At a Heritage Foundation panel discussion on the Court’s marriage ruling, Carrie Severino of the right-wing Judicial Crisis Network, declared, “The next president will likely have one, two, maybe three Supreme Court nominations,” adding that the Court’s Obergefell ruling “is not the final decision in this series….”

She also looked ahead to the elections and the “generational impact” of future Supreme Court justices:

“I think it’s important to have judges on the court that are going to be faithfully interpreting the Constitution, and therefore to make sure that there’s a president in place, and senators in place, who recognize the overarching importance of this issue….

Ryan Anderson of the Heritage Foundation said that Justice Kennedy’s majority opinion in Obergefell cited “new insights” into marriage and that a Court with more right-wing justices could use their own “new insights” to overturn the marriage equality decision. He urged the anti-marriage-equality movement to conduct new research into gay parenting (citing the widely discredited Mark Regnerus study on “family structures) to give future right-wing justices some justification for overturning the recent ruling. 

“I could see a situation in which the Court has a different composition, as Carrie mentioned, chances are the next president will have up to four seats to fill. At Inauguration Day three of the justices will be in their 80s and one of them will be 78. So there’s a chance that there will be a different composition of the Court. And if there are new insights into marriage, and new insights into the rights of children, that could be a possibility for the Court to reconsider.

Also weighing in, the notorious Frank Schubert, architect of the anti-equality movement’s anti-gay messaging strategy:

The court’s decision will also powerfully inject marriage into the 2016 presidential contest. The most direct course to reverse this ruling lies in the next president appointing new justices to the Supreme Court. Social conservatives will do everything possible to ensure that the Republican nominee is a strong pro-marriage champion, making this a litmus test throughout the GOP primaries and caucuses.

Paul Waldman says that, believe it or not, John F. Kennedy was the last Democratic president who had the chance to nominate a replacement for a conservative Supreme Court justice. Given the age of the justices, he says, “it would be strange if at least one or two didn't retire in the next president's term (the last three presidents each appointed two justices).”

If the next president gets that chance, no matter which party he or she comes from, it will profoundly affect the court's direction. If a Republican could appoint someone to replace Ginsburg or Breyer, it would mean a 6-3 conservative majority, which means that Kennedy would no longer be the swing vote and there would be a margin for error in every case. If a Democratic president were to replace Scalia or Kennedy, then the court would go from 5-4 in favor of the conservatives to 5-4 in favor of the liberals.

Those two outcomes would produce two radically different Supreme Courts, with implications that would shape American life for decades.

If progressives want to see a Court that vigorously protects the right to vote, that does not regularly bend the law in order to give more power to the already-powerful, that recognizes that the “equal” in “Equal Protection” means what it says, that does not regard the separation of church and state as some jurisprudential mistake, and that understands that Americans have a right to limit the corrosive influence of money on our elections, then they should make the Court an overriding issue for progressives in the 2016 elections.  Those who see a very different role for the Supreme Court, and wish for a very different America, have already made the connection.

 

PFAW

EEOC Says Anti-Gay Discrimination Is Illegal Sex Discrimination

The Equal Employment Opportunity Commission, the federal agency tasked with enforcing federal laws prohibiting job discrimination, issued an order yesterday with substantial impact on millions of people throughout the country.  In a case involving allegations of discrimination at the Federal Aviation Administration, the EEOC has concluded that Title VII’s prohibition against sex discrimination includes discrimination on the basis of sexual orientation.

In other words, the agency that enforces Title VII says that it’s illegal to discriminate against someone because they are gay, lesbian, or bisexual.  (It had already made a similar finding about gender identity.)

This makes perfect sense.  Federal courts, including the Supreme Court, have long held that employers may not rely upon sex-based considerations or take gender into account when making job-related decisions.  As the EEOC now notes:

Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. “Sexual orientation” as a concept cannot be defined or understood without reference to sex. …

Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee's sex. For example,  assume that an employer suspends a lesbian employee for displaying a photo of her female spouse on her desk, but does not suspend a male employee for displaying a photo of his female spouse on his desk.  The lesbian employee in that example can allege that her employer took an adverse action against her that the employer would not have taken had she been male.

The agency also notes that just as the law prohibits employers from discriminating against an employee because of the race of that person’s spouse, the same applies to the spouse’s sex.

This is not the first time that the EEOC has expanded the frontiers of justice and equality through an obvious but overdue interpretation of Title VII, which was passed in 1964.  For instance, today it’s common knowledge that sexual harassment in the workplace violates Title VII.  Yet, as anyone who lived through the 1960s (or watched Mad Men) can tell you, sexual harassment was quite common, Title VII notwithstanding.  It was not until 1980 that the EEOC issued guidelines prohibiting sexual harassment as a form of sex discrimination.  And it took until 1986 before the Supreme Court made that interpretation the law of the land in a case called Meritor Savings Bank, FSB v. Vinson.

Some courts have already addressed this issue and reached the opposite conclusion of the EEOC.  Dale Carpenter notes in the Volokh Conspiracy:

The EEOC’s view on sexual orientation, however, runs counter to the rulings of several circuit courts. These courts have reasoned that “sexual orientation” is not among the list of prohibited bases for employment action, that Congress did not intend to eliminate anti-gay discrimination when it enacted Title VII, and that Congress has repeatedly refused to add “sexual orientation” to employment protections.

The EEOC calls these earlier circuit court decisions “dated,” and some of them have been undermined by subsequent precedents in the same circuits recognizing that gender stereotyping, including gender stereotypes evidenced by anti-gay comments, is sex discrimination.

This week’s action from the EEOC certainly isn’t the end of the story.  Usually, if an agency interprets the law it’s charged with implementing, courts are required to give substantial deference to its interpretation, as long as it’s a reasonable way of reading the law.  But courts are not required to give that same level of deference to the EEOC’s interpretation of Title VII.  So while its recognition that sexual orientation discrimination is a manifestation of sex discrimination is a step forward, it could be undone by the courts (as well as by EEOC commissioners nominated by a future administration hostile to LGBT equality).  Indeed, we may see this issue ultimately decided by the Supreme Court.

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

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

PFAW Telebriefing Explores Ferguson, Baltimore and the Fight for Racial Justice

As police violence plagues cities across the nation, communities are actively responding with initiatives to mitigate violence and work toward justice. Elected officials, faith leaders and community activists have come together to strengthen their communities in places such as Ferguson and Baltimore. As Pastor Barry Hargrove, president of the Progressive Baptist Convention of Maryland and an active minister in our African American Religious Affairs Program, explained, “There are lots of things happening behind the scenes, happening on the ground, that are not being reported.”

On Tuesday, PFAW hosted a telebriefing for members about the Black Lives Matter movement. PFAW Communications Director Drew Courtney moderated a dialogue among Hargrove, Missouri State Senator and member of affiliate PFAW Foundation’s Young Elected Officials Network Maria Chappelle-Nadal, PFAWF Director of Youth Leadership and Tallahassee Mayor Andrew Gillum, and PFAWF Director of African American Religious Affairs Leslie Watson Malachi.

In the telebriefing, these leaders answered questions about Baltimore and Ferguson and discussed progressive measures taking place in their own communities. In both Baltimore and Ferguson, local leaders have turned toward broad and responsive solutions – such as community policing, social justice education curricula, and prayer rallies – to address targeted violence against minorities.

Despite these steps, Chappelle-Nadal noted that there are still “a significant number of issues that have not been addressed by the legislature.” Chappelle-Nadal, as well as Hargrove, Gillum, and Malachi, encouraged participants to continue advocating for local policies that can help to provoke a systemic change in police practices and empower communities.

Call participants posed many productive questions, including a member who asked what steps could be taken to address tension between the police and communities. Hargrove suggested working within “spheres of influence,” whether it be faith-based organizations or public policy proposals. He also encouraged dialogues between police and community members; Chappelle-Nadal echoed this sentiment by urging citizens to build connections based on commonalities rather than differences.

Listen to the full briefing here:

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Rebuffed by Republican Legislators, Bobby Jindal Issues Executive Order on 'Religious Liberty'

In a Republican presidential field crowded with far-right candidates, Louisiana Gov. Bobby Jindal is trying to distinguish himself as the far-rightest candidate, especially on issues relating to marriage equality and its supposed threat to the religious freedom of conservative Christians.

Jindal’s latest came at the end of the day on Tuesday. Unwilling to accept the legislature’s failure to pass a so-called “religious liberty” bill (it was voted down 10-2 in a House committee), Jindal issued an executive order designed to protect any person who “acts in accordance with a religious belief that marriage is between one man and one woman.” The order explicitly defines “person” to include for-profit corporations and well as nonprofit organizations.

Jindal has adopted the rhetorical strategy promoted by the National Organization for Marriage and other opponents of LGTB equality: try to turn conversation about anti-gay discrimination “on its head” by declaring that laws protecting gay people are actually a form of discrimination against Christians. His statement about the executive order said it was designed to “prevent the state from discriminating against persons or entities with deeply held religious beliefs that marriage is between one man and one woman.”

Jindal’s order invokes the Supreme Court’s decision in Hobby Lobby, making it the latest sign that the decision – which granted corporations a right to claim legal exemptions based on the religious beliefs of company owners -- poses a threat to nondiscrimination measures and potentially a wide range of laws protecting the interests of workers. Jindal declared that his order is “not about discrimination,” even though its clear intent is to give legal cover to companies, government officials, and others who discriminate against same-sex couples.

Louisiana does not currently give legal recognition to same-sex couples, but Jindal is concerned that the state’s ban on marriage equality may soon be struck down by the Supreme Court, a potential ruling which his order seems to be a legally questionable effort to pre-empt. Jindal should be asked to clarify exactly what actions his legislation is designed to “protect”: a courthouse clerk who refuses to process marriage license paperwork? Religious schools getting tax dollars under Jindal’s education policy refusing to accept children of gay parents? Catholic hospitals refusing to recognize the spousal or parental rights of gay couples during medical emergencies?   

Jindal’s “religious liberty” bill had been opposed by business and tourism leaders as well as civil rights groups. The New Orleans Times Picayune reports that the New Orleans Convention and Visitors Bureau CEO Stephen Perry had called the bill “a radioactive, poisonous message.”

But Jindal’s primary audience is no longer his Louisiana constituents; it's right-wing activists nationwide. Jindal boasted about the executive order by stopping by the radio program hosted by Family Research Council President Tony Perkins, an anti-gay activist who once suggested that LGBT non-discrimination measures would lead to the Holocaust perpetrated against Christians.

Right-wing pundit and Iowa GOP activist Steve Deace reacted rapturously, proclaiming Jindal his “winner of the week” for standing up to “Republicrats.”

Jindal immediately stepped in and ordered that while he’s governor the state government is not going to be a tool of the Cultural Marxists’ Rainbow Jihad against religion — particularly Christianity….

This action by Jindal is an example of what will be required of the next president if he’s going to truly honor his oath of office to defend our Constitution against all enemies — “both foreign and domestic.”

Let’s face it, the vast majority of alleged conservatives won’t stand up to the Democrats. And almost none of them will stand up to the Republicrats. On perhaps the most important issue of them all — the First Amendment that allows us the freedom to peacefully and publicly stand on principle for everything else — Jindal has done both.

But he didn’t just stand up to them rhetorically, he actually did something about it. There are several potentially exciting presidential candidates this cycle. There’s even a couple that like Jindal have shown they will tell the Republicrats bleeding us dry to stick it where the sun doesn’t shine.

PFAW

Are Conservative Justices Suggesting that Oppression Justifies More Oppression?

At today's oral arguments in Obergefell v. Hodges (the marriage cases), some Justices expressed concern with concluding that the Constitution prohibits marriage bans when no state allowed same-sex couples to marry until 2003, and that they could not think of a society in history that had allowed same-sex couples to marry.

It seems that gets things backward. It's not like throughout recorded history, gays and lesbians have been treated well but for the itty-bitty fact that we were not allowed to marry the people we loved. In fact, the opposite is true. For much of history, gays and lesbians have been stigmatized, tortured, scorned, cast out, etc. by the governing forces in their societies, both church and state. American society from our founding is far from immune from this indictment.

It is hardly a surprise that societies that suppress a minority don't establish institutions like marriage to take that minority's needs into account.

The absence of marriage equality in much of human history is not a rationale to continue to deny this fundamental right to same-sex couples. Oppression does not warrant continued oppression under the U.S. Constitution's Equal Protection Clause. Exactly the opposite is true: A history of oppression warrants heightened scrutiny of laws that harm the targets of historical oppression.

PFAW Foundation

In Marriage Arguments, Scalia Overlooks the People's Role in Adopting Equal Protection

During oral arguments in Obergefell v. Hodges this morning, Justice Scalia sought to frame the marriage issue as a question of who decides how to define marriage: the people, or the Court?

At one point, he asked how many states have chosen to allow same-sex couples to marry by legislative act or referendum. When the attorney for the couples also mentioned states whose courts have interpreted their state constitutions as requiring marriage equality, Scalia responded:

But ... that's not the people deciding, it's judges deciding.

But those state constitutions, like the federal one Scalia is tasked to interpret, were adopted by the people. And in adopting constitutional guarantees of Equal Protection, the people agreed to impose powerful and permanent limitations on their future lawmaking. The people agreed that they wanted to be held to a higher standard when, then or at some future point, they decide to pass laws harming a particular group. And the people chose to do so by adopting Equal Protection as a general principle, rather than adopting a specific list of who is worthy of protection.

The Supreme Court should rule that denying same-sex couples the right to marry violates the Equal Protection Clause, a promise the people made to themselves and to us when they adopted the 14th Amendment.

PFAW Foundation

Justice Ginsburg Tackles Idea that Marriage Definition Has Existed for Millennia

One of the words being bandied about at this morning's oral arguments in the marriage cases was "millennia." One of the anti-equality side's main talking points is that equality proponents are asking the Justices to "redefine marriage," as if marriage has been static in nature for time immemorial. Justice Kennedy raised this issue early in oral arguments. As reported in the Washington Post:

10:06 a.m.: Justice Anthony M. Kennedy, who is believed to be the deciding vote in this case, quickly jumped in with a question about the long-standing view of marriage as between two members of the opposite sex. "The word that keeps coming back to me is ‘millennia,' " he said.

Same-sex marriage has been legal in the United States for only about a decade, since Massachusetts legalized it in 2006, Kennedy said. "I don't even know how to count the decimals," he said. "This definition has been with us for millennia."

Perhaps no one is better qualified to tackle this aspect of the case than Justice Ginsburg. As live-blogged by SCOTUSBlog:

One seemingly striking moment came when Justice Ginsburg spoke of how it was recent changes to the institution of marriage that made it appropriate for gay and lesbian couples -- in particular, it becoming an egalitarian institution rather than one dominated by the male partners who determined where and how the couple would live.

Indeed, the idea of marriage as the voluntary union of two lawful equals is hardly one that goes back millennia, or even to our nation's founding. For much of American history, women who got married actually lost their civil identities as individuals, being seen in the eyes of the law only as the wives of their husbands, who had all the legal rights. In the 19th century, it was considered a major reform to allow a woman to keep her own property in her own name after she married, rather than having it automatically transfer to her husband. A more recent reform is that a wife is not automatically considered to have given consent to her husband for sexual intercourse.

Marriage as it is practiced in our country is hardly millennia old. Much of what defined marriage in U.S. history would today be struck down as violating the rights of women under the 14th Amendment. When a New York court in the 1980s struck down that state's rape exemption that allowed men to rape their wives, the judge opened his opinion with quotation from John Stuart Mill's 1869 essay The Subjection of Women: "Marriage is the only actual bondage known to our law. There remain no legal slaves, except the mistress of every house."

But the court that struck down the spousal rape exemption more than a century after that was written was not engaged in an illegitimate "redefinition" of marriage. It was simply enforcing the 14th Amendment, as the Supreme Court is being asked to do today.

PFAW Foundation

Arkansas Governor Does Only a Partial Retreat on RFRA

Yesterday, the Arkansas legislature approved a so-called "Religious Freedom Restoration Act" bill similar to Indiana's RFRA. Today, the governor surprised people by rejecting the bill as written and asking for changes. As CNN reports:

Arkansas Gov. Asa Hutchinson says he does not plan to sign the religious freedom bill that sits on his desk right now, instead asking state lawmakers to make changes so the bill mirrors federal law.

The first-term Republican governor said he wants his state "to be known as a state that does not discriminate but understands tolerance."

While the requested change would remove some of the dangerous aspects of the bills that differentiated them from the federal version, it would still leave the door open to state-sanctioned discrimination in the name of religion.

The federal RFRA dates back to 1993, and neither its text nor its purpose empower anyone to bypass laws protecting LGBT people from discrimination. However, as PFAW Senior Fellow Elliot Mincberg has written, the Supreme Court drastically rewrote the law last year in its 5-4 Hobby Lobby decision:

[As Justice Ginsburg explained in her dissent,] the Court effectively rewrote RFRA so that it could be invoked by for-profit corporations, and so that the original law protecting individuals against a "substantial burden" on the exercise of religion was transformed to allow claims by a business owner that complying with a neutral law offended their religious beliefs in some way. Under the majority's view, Justice Ginsburg suggested, RFRA could be interpreted to "require exemptions" in cases where religious beliefs were used to justify actions that discriminated on the basis of race, gender, and sexual orientation. Pointedly, Justice Alito responded only that "prohibitions on racial discrimination" would be safe from a RFRA exemption claim, but said nothing about gender or LGBT status.

That's why Gov. Hutchinson's call for a bill that matches the federal RFRA does not solve the discrimination problem. A state law tracking the federal RFRA and passed after Hobby Lobby is far more likely to be interpreted by the courts along the same lines. This is especially so since the bill's supporters regularly cite their desire to "protect" businesspeople who are religiously offended by same-sex couples from serving them.

The Arkansas and Indiana RFRAs have features making them even more open to be used as vehicles for otherwise illegal discrimination than the federal RFRA as transmogrified by the Roberts Court. But if Gov. Hutchinson succeeds in getting a bill that matches the federal version, he still will not have accomplished his stated goal of making Arkansas "known as a state that does not discriminate."

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