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

Diversity vs. Scalia at Marriage Oral Arguments

There was a fascinating exchange during oral arguments in the marriage cases this morning that highlighted the importance of having a diverse federal judiciary.

Echoing a right-wing talking point that is utterly without legal merit, Justice Scalia suggested that ministers who oppose marriage equality might be compelled to violate their religious beliefs by marrying same-sex couples. Once the Court rules that the state cannot constitutionally discriminate against same-sex couples seeking to marry, then clergy – who are instruments of the state when they perform a civil marriage – cannot constitutionally decline to marry same-sex couples, Scalia suggested.

I don't see how you could possibly allow that minister to say, I will only marry a man and a woman. I will not marry two men. … I don't see any answer to that. I just don't.

Really??

Fortunately, while Justice Scalia didn't see any answer to that, Justice Kagan was there to inject what should have been an obvious point:

[T]here are many rabbis that will not conduct marriages between Jews and non-Jews, notwithstanding that we have a constitutional prohibition against religious discrimination. And those rabbis get all the powers and privileges of the State, even if they have that rule, many rabbis won't do that.

Yes, Justice Scalia, throughout American history, with marriage limited to opposite-sex couples, clergy have been free to refuse to marry people if doing so violates their religious beliefs, even when discrimination against that couple by the state would be unconstitutional. That will not change just because the religious belief in question is about two men or two women. It's called the First Amendment.

For many American Jews, intermarriage is common among our friends and family, so we are quite familiar with rabbis who choose not to marry mixed-faith couples. Bringing her life experience to the bench, Justice Kagan was able to help ease Justice Scalia's mind.

But it's disconcerting to think that Scalia had to be reminded of this in the first place.

PFAW Foundation

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

PFAW Telebriefing Unpacks Legal Issues and Real-World Implications of Marriage Cases

As the Supreme Court prepares for arguments about the right to marry, PFAW Foundation Senior Fellow Jamie Raskin says our country may be “on the verge of a historic breakthrough.”

On Thursday, PFAW hosted a telebriefing for members and supporters on this historic moment in anticipation of oral arguments in the Supreme Court marriage cases (Obergefell v. Hodges) next week. PFAW Executive Vice President Marge Baker moderated a conversation among affiliate PFAW Foundation Senior Fellows Jamie Raskin and Elliot Mincberg as well as People For supporters who called in to join the discussion.

In the telebriefing, Raskin and Mincberg unpacked some of the questions before the court — not only whether states can prohibit same-sex couples from marrying or refuse to recognize marriages from other states — but also the implications of the various types of reasoning the justices may use to reach their decision.

They also reflected on the remarkable social transformation our country has seen on the rights of LGBT people. Raskin remembered that the 1986 Bowers v. Hardwick decision, which upheld the criminalization of “sodomy,” came out while he was in law school. With the Court’s steady march away from that kind of legal reasoning, he said, “there’s no going back from here.”

Mincberg pointed out that, unfortunately, the backlash has started before the Supreme Court even decides the cases. With “right to discriminate” legislation pending in more than a dozen states and a handful considering “marriage refusal” bills, it’s clear that the far Right is already forging ahead with a nationwide push to undermine the expanding rights of LGBT Americans.

Call participants shared some great questions and opinions, including a retired pediatric doctor who asked why the principles accepted by the medical community to take care of your patients rather than question or judge them have not been accepted by the political community as well.

Listen to the full telebriefing here:

PFAW

PFAW Foundation and Leadership Programs Support #Unite4Marriage

PFAW Foundation and its leadership programs, African American Ministers Leadership Council – Equal Justice Task Force, Young Elected Officials Network, and Young People For, are united in their support for the #Unite4Marriage coalition. Marriage equality supporters are currently organizing around the April 28 oral arguments before the Supreme Court and a ruling expected in the coming months on whether the fundamental right to marry enshrined in the US Constitution is limited to opposite-sex couples. There will be events in DC and in communities across the country.

Back in January, PFAW Foundation President Michael Keegan applauded the Court's decision to hear the four Sixth Circuit cases.

This is unquestionably an important step towards marriage equality for all Americans. Since the Sixth Circuit got this wrong and denied people in four states their basic rights, the Supreme Court did the right thing by taking these cases. Now the Court needs to do the right thing by making a clear statement about the Constitution’s guarantee of fundamental equality for all people. The time is long overdue for every American to have the right to marry the person they love.

That said, this is likely to be yet another five-four decision from the Court that gave us Citizens United and Hobby Lobby and gutted the Voting Rights Act. That should be a reminder that our fundamental rights are in jeopardy in our nation’s highest court — and the future of the Court and these rights will be in the next president's hands. Americans should be able to depend on the Supreme Court to defend the rights of ordinary Americans — whether that’s the right to marry, or to vote, or to be treated fairly on the job, or to control their own reproductive health.

Today is an important step towards full equality for same-sex couples—and a powerful reminder that every American should be concerned about the balance of the Supreme Court.

Just last month, PFAW Foundation joined the Anti-Defamation League and an expansive coalition of religious and civil rights organizations in submitting an amicus brief in support of marriage equality.

[C]ontrary to the arguments of some who defend the marriage bans, invalidating the bans will not jeopardize religious liberty. As an initial matter, the cases before this Court concern whether same-sex couples are entitled to the benefits of civil marriage. Religious groups will remain free, as they always have been, to choose how to define religious marriage and which marriages to solemnize…. Religious liberty should serve as a shield, not as a sword to discriminate against members of a disadvantaged minority group.

We'll share more about #Unite4Marriage as we hear it.

See you on the 28th!

PFAW Foundation

The Animus Amicus: Archive Activism and Marriage Equality

Note: This article first appeared at Huffington Post. 

In April, the U.S. Supreme Court will hear arguments on the constitutionality of state laws that ban same-sex couples from getting married. The historic case has attracted a wide array of amicus briefs; People For the American Way Foundation joined religious and civil rights groups on a brief urging the Court to reject discriminatory marriage bans and challenging “religious liberty” arguments opposing marriage equality.

One fascinating brief was filed by the Mattachine Society of Washington, D.C.  The original group by that name was led by Frank Kameny, an astronomer who was fired from his federal job for being gay and led some of the earliest gay-rights protests in the nation’s capital in the 1960s. The name and legacy have been revived by local activists Charles Francis and Pate Felts for the purpose of documenting decades of systematic anti-gay discrimination by the federal government. In partnership with pro bono attorneys from the firm of McDermott Will & Emery, the new Mattachine Society of Washington, D.C. is engaged in strategic “archive activism.” They are using the Freedom of Information Act to unearth a “culture of animus” that permeated the U.S. Civil Service Commission – now known as the Office of Personnel Management – and to bring to public light previously closed records about investigations challenging workers’ “loyalty” and “suitability.”

“The investigation and firing of gay and lesbian federal employees was like shooting fish in a barrel for the General Counsels and legal staff of the Civil Service Commission,” says Francis. “The animus, almost sports-like in their writings, is documented in decades of legal advisory files we discovered this year at the National Archives.”

Among the historical tidbits unearthed by the project: Nancy Reagan turning down a plea from a dying Rock Hudson for help getting into another hospital; and anti-gay activist Gary Bauer’s no-holds-barred, but ultimately unsuccessful, effort to keep the White House from including a gay person on the nation’s first AIDS commission.

The Mattachine Society’s project is about preserving the historical record, but it also has an important legal purpose, which is demonstrating that anti-equality laws and regulations have long been grounded in hostility, or animus, that is not a permissible justification for discrimination.  Chief Justice John Roberts’ dissent from the Supreme Court decision in Windsor, which overturned the Defense of Marriage Act, demonstrates the importance of this archival work. Roberts suggested there is insufficient evidence – he waved it away as “snippets of legislative history” – to demonstrate that DOMA’s purpose was to “codify malice.” Added Roberts, “I would not tar the political branches with the brush of bigotry.”

There’s no escaping the brush of bigotry, the reeking stench of bigotry, exposed by the Mattachine Society’s brief, which links to more than 35 historical documents that demonstrate the ways that the Civil Service Commission, often in partnership with J. Edgar Hoover’s FBI and other law enforcement agencies, investigated people suspected of sexual “perversion” and robbed them of their federal jobs and careers.

From the amicus:

For decades, this animus was one of the basic assumptions of American life. It was so persistent, so prevalent, and so instrumental to the way that we structured our institutions, treated our fellow citizens, and organized our lives that, in retrospect, it is often overlooked….

For decades, both federal and state governments targeted and persecuted homosexuals, individuals suspected of being homosexual, and even those believed to have engaged in homosexual acts, regardless of actual sexual orientation. The stated rationale shifted over time—from concerns about national security to code words, such as “suitability”—but the point was always the same: government officials, federal and state, high and low, felt a complete revulsion toward homosexuals and wanted to purge the country of even the hint of homosexuality.

Animus, therefore, was a culture. And with that culture came a language. For decades,  government officials referred to homosexuality in official, often highly confidential or privileged communications, as “unnatural,” “uniquely nasty,” “immoral,” “deviant,” “pervert[ed],” and an “abomination.” Even the FBI had a term for the program that it designed to rid the government of homosexuals—the “Sex Deviate Program.” Once it attached, whether based in fact or mere speculation, the label of homosexuality remained forever fixed. As one senior executive official wrote, “once a homo, always a homo.” And, as one state legislature put it, what homosexuals wanted was “recognition.” And “recognition” was something to fear….

The effort to purge “sex deviates” began well before President Dwight Eisenhower’s 1953 Executive Order 10450, but that action explicitly made “sexual perversion” a disqualification from federal employment. Congress was in on the act as well. The Mattachine amicus quotes from a 1950 document from the US Senate Subcommittee of the Committee on Expenditures in the Executive Department:

There is no place in the United States Government for persons who violate the laws or the accepted standards of morality, or who otherwise bring disrepute to the Federal service by infamous or scandalous personal conduct . . . . It is the opinion of this subcommittee that those who engage in acts of homosexuality and other perverted sex activities are unsuitable for employment in the Federal Government.

The federal government also worked in concert with anti-gay activities being carried out at the state level. One of the documents uncovered by Mattachine’s Freedom of Information Act requests is a 1963 note from Civil Service Commission General Counsel L. V. Meloy to Charley Johns, chairman of the Florida Legislative Investigation Committee on Homosexuality and Citizenship.

The infamous Johns Report wallowed in salacious descriptions of “the special world of homosexuality” and warned of “aggressive homosexuals” seeking recognition and legal equality. The report described teachers engaging in sex in public bathrooms and little league coaches seducing teenagers, asserting, “The plain fact of the matter is that a great many homosexuals have an insatiable appetite for sexual activities and find special gratification in the recruitment to their ranks of youth.” The report included a glossary of “sex offenses” that were illegal under Florida law and eight pages of homosexual slang and “deviate acts.”

Meloy’s letter asking for “several copies” of the report said that the “Federal Government has related problems in this area and … [the] investigation will shed additional light on a most difficult problem in suitability for government employment.” The Florida committee specifically targeted gay teachers but also resulted, according to the Mattachine amicus, in the removal of at least 37 federal employees.

The brief also documents that the Civil Service Commission shifted its strategies in response to court rulings challenging its policies. The brief goes into some depth documenting the case of William Dew, an African American Air Force veteran. Dew was married with a pregnant wife when he was fired from his job as an air traffic controller in 1958 for having admitted years earlier as part of a job application to the CIA that he had experimented with gay sex when he was in college. After a six-year legal battle, culminating in the Supreme Court agreeing to hear Dew’s appeal, the government settled with him. But rather than loosening the CSC’s anti-gay policies, the government strengthened its resolve in the wake of the Dew settlement and, in the words of the Mattachine amicus, “demonstrated its willingness to use all of its resources to crush homosexuals and those who engaged in homosexual acts with its suitability standards.”

Following a 1969 DC Circuit Court ruling that challenged the firing of federal workers for something that had nothing to do with the performance of their jobs, the CSC General Counsel at that time, Anthony Mondello, argued that federal agencies would have a hard time attracting quality workers if applicants knew they might have to work with “people who repeatedly engaged in serious misconduct offensive to community standards.”

The CSC and its successor, the Office of Personnel Management, continued to target gay federal employees throughout the 1960s and 1970s and into the 1980s.

The Mattachine Society brief ends with an appeal to the Court’s history of addressing anti-gay animus:

The Dew case is important for another reason as well—one that goes to the heart of the cases now before this Court. For decades, there was no limit to the animus meted out against LGBT Americans and no end to its reach. It poisoned every institution in the United States and seeped into the lives of all Americans, not merely those of gays and lesbians. So too, the language of animus became commonplace among those in the highest positions in government: “homo,” “sexual deviant,” “pervert,” “abomination,” “uniquely nasty,” and other derogatory terms and phrases were used with bureaucratic ease as a way to define, cabin, and limit the citizenship of LGBT Americans. As the Dew case perfectly illustrates, the animus even extended to those who were not gay.

It was the courts—and in the case of Dew, this Court—that ultimately stepped in to set the course right. This Court knows animus when it sees it, and it has a well-established line of cases overturning laws that by their text, background history, and effect, relegate a class of citizens to second-class status. Seee.g., Romer v. Evans, 517 U.S. 620 (1996); Lawrence v. Texas, 539 U.S. 558 (2003); and United States v. Windsor, 133 S. Ct. 2675 (2013). Indeed, this Court has already recognized the long history of discrimination and animus against homosexuals. Seee.g., Lawrence, 539 U.S. at 571.

The newly revealed documents cited herein merely reinforce what this Court already knows. For decades, there was a culture of animus against LGBT Americans that permeated every aspect of American life and every American institution. In many places, that culture continues to this day. To say that the marriage bans now at issue are not somehow the product of this historical animus is to ignore reality. We may not see the air that feeds the flame. But, for decades, animus against LGBT Americans fed the flames of hatred, revulsion, and disgust from which the current marriage bans arose.

The Mattachine Society of Washington, D.C. is optimistic about the impact of its brief. “The government attorneys who administered the federal ban on homosexuals have met their match in our pro bono counsel McDermott, Will & Emery’s powerful amicus brief," says Francis, "The McDermott brief is a lasting account of an unconstitutional ‘culture of animus’ embedded through seven Presidencies.”

PFAW

Alabama's Shame Grows with Bill to Make It Harder for Gays to Marry

In some parts of the world, government officials won't help you if you don't share their religious beliefs. Citizens seeking to be served by government employees have to go from office to office, experiencing the shame and frustration of being turned away by those whose salaries they pay.

Yesterday, Alabama took a step toward becoming such a place, to the delight of the far right.

The Alabama House passed the so-called "Freedom of Religion in Marriage Protection Act" by an overwhelming margin of 69-25 yesterday. Among its provisions is one stating that civil servants have the right to refuse to perform any civil marriage ceremony should they wish. As AL.com reported:

In session today, Rep. A.J. McCampbell, D-Livingston, asked [bill sponsor Jim] Hill: "Why all of a sudden has this become an issue?"

Hill replied: "I can't answer that, sir."

Really? It isn't hard to figure out:

Tears came to the eyes of Rep. Patricia Todd, D-Birmingham, as she spoke against the bill on the House floor. Todd, the only openly gay legislator in the state, said the bill was drafted to discriminate against gay couples who want to marry.

"This is very hurtful to me as an openly gay person," she said.

Ever since a federal district judge ruled that Alabama's marriage ban violates the Constitution, the state has been a showcase of defiance. Alabama Chief Justice Roy Moore violated the canons of judicial ethics in seeking to force government officials from complying with the ruling, prompting our affiliate PFAW Foundation to file a formal complaint with the Judicial Inquiry Commission. Because of Moore, Alabama quickly became a checkerboard where gay and lesbian Alabamans were locked out of full citizenship across vast swaths of the state based on the whims of local officials. The state supreme court then shut down marriages for same-sex couples across the state in a highly controversial ruling.

Now Alabama legislators are seeking to guarantee that even if the U.S. Supreme Court rules that lesbians and gays have the right to marry, it is a right they will not be able to exercise across vast swaths of Alabama, unless they can find a public servant whose religious beliefs do not include a vehement hostility to lesbian and gay equality. That this bill targets one group of people for second class citizenship cannot be seriously questioned. No one should be fooled for a moment that this has anything to do with religious liberty, a fundamental American value designed to be a shield from oppression, not a sword to harm others.

PFAW