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Roberts Court Leaves Workers and Employers Hanging

A case dismissal leaves intact a damaging lower court opinion whose questionable validity prompted the dismissal.
PFAW Foundation

Coming Out, Wherever You Are

The following is a guest post by South Dakota State Senator Angie Buhl O’Donnell, a member of People For the American Way Foundation’s Young Elected Officials Network.

Harvey Milk’s words inspired audiences throughout his life, but his most enduring words may have been the simple push to “come out, come out wherever you are.”

To me, that’s the most important legacy of the political leader we lost 35 years ago this week – his insistence on the far-reaching impact of the very personal act of coming out. Despite the potential downsides, despite the fact that it can feel easier not to come out, Harvey Milk knew that our community must be visible in order to make legal and social equality a reality.

While Milk spent much of his life in urban centers, I believe the urgency to make ourselves visible is even greater in places like South Dakota, where I live.  It’s 2013, but some people still think LGBT people only exist in New York or San Francisco. As researcher Mary Gray has written, popular representations of rural LGBT people paint us as “out of place” in states like South Dakota – as people who need to “seek out belonging in an urban elsewhere to find happiness.” But LGBT people are in every part of our country, and we are increasingly visible in the political landscape.

Milk’s legacy has been a personal inspiration for me, as an openly bisexual elected official. Earlier this year, I became a Harvey Milk Champion of Change. While I was honored to be recognized by the White House with an award bearing his name, I actually had some hesitation about accepting. As a bisexual woman married to a man, I was worried about people thinking I didn’t really “deserve” it. But I realized that line of reasoning was not what Harvey Milk would have embraced. His legacy is about sharing your own identity, your own truth in whatever form that might take.  Besides, there’s a “B” in “LGBT” for a reason. 

PFAW Foundation

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

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

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

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

PFAW Foundation

Harvey Milk’s Legacy

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

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

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

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

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

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

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

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

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

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

PFAW Foundation

Isabel Allende Fights Against Banning of Her Own Book

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

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

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

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

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

PFAW Foundation

Remembering Bobbie Handman

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

Hillary Clinton, Bobbie Handman, Bill Clinton

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

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

PFAW Foundation

Religious Freedom Anniversary Highlights Divisions Among Current and Former Allies

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PFAW Foundation

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

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

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

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

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

The full text of our letter is below.

October 25, 2013

Dear Members of the Review Committee,

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

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

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

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

Best wishes,

Michael Keegan
President, People For the American Way Foundation

PFAW Foundation

Scalia's Nightmare: Evil Foreigners Impose Marriage Equality on U.S.

In coming up with a scary hypothetical regarding the limits of congressional authority, Scalia turns to marriage equality.
PFAW Foundation

Supreme Court Won't Hear Abortion Rights Challenge

The Court won't review an Oklahoma court's ruling striking down limitations on how women can use medications to terminate early pregnancies.
PFAW Foundation

Cruz Holds Up Government Over Good Government Measure

There is no shortage of senators opposed to the DISCLOSE Act. But while any of them will no doubt bloviate on why shining a light on campaign ad expenditures somehow limits free speech, junior Texas Senator Ted Cruz has taken his distaste for sunshine to a new level this month by holding the Federal Communications Commission hostage over the matter. Luckily, Sen. Cruz has folded, in part due to his dwindling stock among GOP leaders.

With two seats vacant on the FCC, the Senate Commerce committee held confirmation hearings this summer on candidates to fill the commission. While Michael O’Rielly, an advisor to Sen. Cornyn of Texas, faced a breezy nomination hearing in September, nominee Tom Wheeler’s June hearing grabbed media attention thanks to Sen. Cruz. Mr. Wheeler, a long time industry leader and President Obama’s nominee to chair the Commission, was asked by the senator for his thoughts on the FCC’s role in campaign ad disclosure. When Mr. Wheeler replied frankly that he did not know enough about the matter and could not answer, Sen. Cruz threatened to hold up the confirmation process until he was given a different answer.

Once the federal government reopened this month, the Senate was poised to pass the two nominees so that the FCC could handle its full docket of work. Then Sen. Cruz caused a new shutdown, this time blocking a unanimous consent confirmation vote for Mr. Wheeler because he wanted the presumptive chairman of the FCC to effectively set policy without the resources of the Commission at his disposal. With Mr. Wheeler’s vote tied to Mr. O’Rielly’s, the FCC was thus left without a chairman and its fifth commissioner. In the Senate, there are only two ways to overcome a hold like Sen. Cruz’s. The first is for the senator in question to remove his hold, while the other is to override the senator by way of a cloture vote requiring a supermajority of 60 votes.

Senate Majority Leader Harry Reid decided to call Sen. Cruz on his bluff Monday night. Sources have indicated that, given Sen. Cruz’s particularly vocal role in this month’s government shutdown,  he has little clout among his Senate GOP peers. With a losing cloture vote imminent, it looks like Sen. Cruz set up a meeting Tuesday with Mr. Wheeler to hash out the nominee’s thoughts on disclosure with the senator. Mr. Wheeler came out of the meeting saying that this move by the FCC was not a priority, which mollified the Texas statesman. It is worth noting that this does not mean the FCC won’t take up disclosure rules  for broadcasters airing political ads under a Wheeler chairmanship.

Sen. Cruz has regarded the FCC as an enemy in his anti-disclosure fight since March when Florida’s senior senator, Bill Nelson (who saw  almost $10 million spent against him by outside organizations last November), addressed the issue. Sen. Nelson pointed out during a Committee hearing (at the 2:06:35 mark) that the FCC must require full on-air disclosure of campaign ad sponsors, and that this was not limited to just the umbrella entity (see Section 73.1212 for the authorizing language’s full text). He went on to say that the Supreme Court looked approvingly on disclosure in its Citizens United decision. Sen. Cruz’s response was to call such a reading “overtly partisan,” and that it would “undermine the integrity of the Commission,” which he stressed is non-partisan (2:28:05).

Yes, Sen. Cruz called the FCC non-partisan, then turned around and used it as a partisan tool to lock the Senate up over the matter of campaign disclosure, all while trying to force an agency nominee to set policy before he steps foot in the door. 

Both Mr. Wheeler and Mr. O’Rielly got their Senate confirmation votes yesterday.

PFAW Foundation

The Citizens United Amendment Movement By The Numbers

The movement to amend the Constitution to overturn Citizens United and related cases continues to grow across the country and in the halls of Congress.

At the local level, over 500 cities and townsincluding New York City, Los Angeles, Philadelphia, San Diego, Chicago, San Jose, Austin, San Francisco, Boston, Seattle, Washington DC, Baltimore, Portland, Albuquerque, Tucson, and Miami, among others – have called for a constitutional amendment.

At the state level, either by passing legislative resolutions or by voting directly on ballot measures, 16 states (containing over 95 million people) have called upon Congress to send them an amendment bill for ratification.

At the federal level, 14 amendment resolutions have been introduced in the US Congress in the 113th session, and 124 representatives (directly representing 87 million people) and 35 senators (representing over 150 million people) have endorsed the amendment strategy since the Citizens United decision came down in January 2010. Furthermore, President Barack Obama has repeatedly called for a constitutional amendment to overturn Citizens United and related cases.

To find out more about the amendment strategy and its progress, please visit www.United4ThePeople.org.

PFAW Foundation

Open Season for Money in Politics in NYC

Citing Citizens United, a circuit court opens the floodgate for unlimited money to flow into the NYC mayoral election.
PFAW Foundation

Salt Lake City Passes “Citizens United” Ballot Initiative with 90% Support

In September, Salt Lake City residents voted by mail on whether or not they want the Constitution to be amended to overturn Citizens United and related cases. Last week the results came in, showing resounding support for taking back our democracy. The ballot opinion question was supported by overwhelming 90 percent of Salt Lake City voters who participated in the election.

It was a huge victory for both residents and for the people who worked tirelessly on the initiative. The ballot measure was spearheaded by Move To Amend Salt Lake, who asked voters to support the People’s Rights Amendment, which states:

"Only human beings, not corporations, are endowed with constitutional rights,” and that “Money is not speech and therefore regulating political contributions and spending is not equivalent to limiting political speech.”

Last year, Move To Amend Salt Lake gathered more than the required amount of signatures to place the initiative on the ballot. However, following City Council law, the initiative was rejected because it was non-binding. The grassroots group then worked with City Council members to change the process and was successful in putting forward the opinion question to voters in 2013.

By supporting the initiative, Salt Lake City joins the roughly 500 municipalities and 16 states that have called for a constitutional amendment to overturn Citizens United and related cases.

PFAW Foundation

Virginia Removes 40,000 Names From Voter Rolls as Election Approaches

The Associated Press is reporting that Virginia election officials have gone ahead with a planned “purge” of the state’s voter rolls, removing nearly 40,000 names from voter registration lists. 

The state’s gubernatorial election is in less than three weeks.

There are signs that some eligible voters may have had their vaild voter registrations revoked in the purge. One local registrar refused to participate, the AP reports, because one in ten names that state elections officers sent him to be removed from the rolls were in fact eligible voters:

One local registrar, Lawrence Haake in Chesterfield County, has defied the state elections board and refused to purge any voters. In an affidavit, Haake says that he conducted a preliminary review that found nearly 10 percent of the names given to him by the state for potential purging were, in fact, eligible voters. He concluded that the risk of purging legitimate voters was too great.

“The list sent to us from the SBE is clearly inaccurate and unreliable,” Haake said in the affidavit.

In our report “The Right to Vote Under Attack,” we documented how flawed voter purges keep eligible citizens from voting.
 

PFAW Foundation

Leading Conservative Judge Says He Was Wrong to Uphold Voter ID Law

Richard Posner now recognizes that voter photo ID laws are intended to unconstitutionally suppress the vote.
PFAW Foundation

Roberts Court Not Likely to Help Victims of Human Rights Abuses

Victims of Argentina's "dirty war" may be prevented from suing a corporate giant whose subsidiary collaborated in human rights abuses.
PFAW Foundation

Will the Roberts Court Choke Off Greenhouse Gas Regulations?

The Roberts Court will hear a challenge to the EPA's authority to regulate greenhouse gases from factories and power plants.
PFAW Foundation

What Universe Is the Roberts Court Living In?

In campaign finance, what is obviously corruption to most of us is just business as usual to the Roberts Court.
PFAW Foundation