Thanks to damaging Supreme Court decisions and a gridlocked FEC, Super PACs have become a central element in our presidential elections. Yet, Americans could at least comfort themselves with the notion that these PACs and the candidates they support were at least required to operate independently from one another. A recent article in the Washington Post proves otherwise.
The article argues that a close reading of the Federal Election Commission rules shows that candidates and interest groups can do more than make public statements about their needs and hope their counterparts are listening; they can actually communicate with one another directly. According to the Washington Post piece, “Operatives on both sides can talk to one another directly, as long as they do not discuss candidate strategy. According to an FEC rule, an independent group also can confer with a campaign until this fall about “issue ads” featuring a candidate. Some election-law lawyers think that a super PAC could share its entire paid media plan, as long as the candidate’s team does not respond.” The coordination is more extensive than people imagine, and, apparently, perfectly legal.
But even the lawyers working on this issue do not agree on what is legal and what is not. Phil Cox who works for America Leads (a Super PAC supporting Chris Christie), says, for example, “The system makes no sense. It’s crying out for reform. We need to put the power back in the hands of the candidates and their campaigns, not the outside groups.” Bob Bauer, a campaign finance lawyer, agrees,
“The problem isn’t that the law isn’t being enforced — the problem is that we need to rethink the whole thing from the ground up.”
This coordination is already affecting the 2016 elections. But even beyond returning power to the candidates, we need to return the power of influencing elections back to the people. Because, in the end, it is the people who need to be represented and therefore, heard. Perhaps this regulation avoidance will cause people to realize that it is the system that needs reform.
Donald Trump began his campaign for the presidency with incendiary remarks about immigrants, and he has not let up. During his first speech as a candidate, Trump stated "when Mexico sends its people, they're not sending the best. … They're bringing drugs, they're bringing crime. They're rapists.” Despite the backlash to his comments, Trump has doubled down on his extremist views on immigration. In an interview with NBC, Trump said “there's nothing to apologize for” and added that any immigration policy less strict than his own would “let everybody come in… killers, criminals, drug dealers.”
Now, companies are responding by severing ties with Trump. Univision pulled out of its contract to broadcast Trump’s Miss USA pageant and NBC cut all ties with Trump, dropping not only the Miss USA and Miss Universe pageants, but also Trump’s role in Celebrity Apprentice. With this list continuing to grow, one organization is conspicuously missing: the Republican National Committee.
PFAW’s partners at the Latino Victory Project are calling on RNC Chairman Reince Priebus and the Republican Party to renounce Trump as a candidate for the Republican nomination for President. With the Republican Party claiming that they are committed to strengthening ties with the Latino and immigrant communities, surely it is time for the RNC to reject a candidate who makes such hateful and racist remarks.
People For the American Way members and other supporters of the movement to get big money out of politics delivered a clear message last night about Sen. Kelly Ayotte’s refusal to support a constitutional amendment to overturn cases like Citizens United.
Activists took to the South Willow Street Bridge in Manchester to hold boxes with LED lights to spell out the words “AYOTTE WON’T #GETMONEYOUT.” Ayotte has described a constitutional amendment to get money out of politics as “dangerous” – despite the fact that a majority of New Hampshire voters who support such an amendment.
Voters in New Hampshire and beyond are increasingly concerned about the amount of money in politics, and the proposed constitutional amendment would dramatically curb political spending to help ensure that our elections can’t be bought by wealthy special interests. New Hampshire activists are committed to holding Ayotte accountable for her refusal to support the movement to undo big money’s corrosive influence on our elections.
Earlier this week, Republican presidential candidate Jeb Bush released his fundraising amount for the upcoming elections. Right to Rise, a Super PAC backing the candidate, announced that it had raised $103 million in the last six months, while Bush’s campaign had raised $11.4 million in the two weeks since his announcement, bringing the fundraising total to a stunning $114 million, 17 months away from Election Day. For comparison, at this point in 2011, Restore our Future, a Super PAC supporting Mitt Romney, had raised only $12.2 million.
These shocking figures demonstrate the growing influence of big money on our elections and political process. $1 billion was spent in the 2012 federal elections, and the Koch brothers alone vowed to raise at least $889 million in 2016 from other wealthy donors. Since the wealthy have policy views that are strikingly different from that of the rest of Americans, this new system has disturbing implications for the state of democracy in the U.S. A Princeton study found that the viewpoints of the bottom 90 percent of income earners have no significant effect on public policy.
One particularly troubling aspect of the Right to Rise fundraising numbers is their definition of “small donors” as those who donated less than $25,000. The fact that the Super PAC considers $25,000 to be the cutoff for small donations raises questions of exactly how much the 500 who raised more than that amount donated.
Most Americans agree that the campaign finance system has gotten out of hand. Three out of four Americans support a constitutional amendment that would allow Congress to set limits on campaign spending, and even presidential candidates such as Lindsey Graham, Bernie Sanders, and Hillary Clinton have stated their support for overturning cases like Citizens United through a constitutional amendment. With the American people so determined to maintain the integrity of our elections, a national conversation about the influence big money in politics is unfolding, laying a foundation for real reform in 2016 and beyond.
With outside contributions in the 2012 federal elections totaling $1 billion, and with the Koch brothers alone already pledging to spend $889 million from their political network in 2016, it’s no wonder 85 percent of Americans agree that the campaign finance system needs serious reform. A particularly disturbing aspect is the prevalence of “dark money,” or political spending by outside Super PACs and so-called social welfare groups with no disclosure requirements. In the 2014 elections, 31 percent of all independent campaign spending was from groups that had no obligation to disclose their donors.
Despite deep concern from their constituents, Congress has been hesitant to take action against dark money being funneled into our elections. Though Senator Sheldon Whitehouse (D-RI) introduced the Disclose Act, which would require that all organizations disclose their political expenditures, Senate Republicans blocked the Senate majority from being able to vote on it.
The American people haven’t given up just yet. 73 percent support a constitutional amendment that would allow lawmakers to limit political spending. Further, more than 550,000 have signed a petition urging President Barack Obama to issue an executive order requiring government contractors to disclose their political spending.
Just this week, advocates for campaign finance reform experienced a major victory when the DC Circuit unanimously upheld the “pay-to-play” provision that bars federal contractors from donating to federal candidates and party committees. In addition, presidential candidates such as Bernie Sanders, Lindsey Graham, and Hillary Clinton have all expressed support for removing big money’s electoral influence.
“We have to stop the endless flow of secret, unaccountable money that is distorting our elections, corrupting our political process, and drowning out the voices of our people,” said Clinton in her kick-off campaign speech.
The movement against dark money clouding our elections has experienced a momentous push as Americans demand a more transparent campaign finance system.
The Supreme Court finished its session on Monday, ending a term filled with landmark decisions regarding fair housing, marriage equality, and healthcare.
On Wednesday, PFAW hosted a telebriefing for members about the end of the Court’s term and the implications of several cases. PFAW Communications Director Drew Courtney moderated a dialogue among PFAW Senior Fellows Elliot Mincberg and Jamie Raskin, Right Wing Watch researcher Miranda Blue, and PFAW Executive Vice President for Policy and Program Marge Baker.
Raskin covered Obergefell v. Hodges and Arizona State Legislature v. Arizona Independent Redistricting Commission. He first noted that Obergefell would not be possible without the “many decades of intense social struggle and millions of people coming out of the closet” which created a momentous societal shift in public opinion of LGBT rights. The Arizona case, which effectively obstructed state legislature’s gerrymandering efforts, was also a huge triumph for democracy, because, as Raskin notes, “the whole point of democracy is that power begins and resides with people.”
Mincberg discussed King v. Burwell as well as Texas Department of Housing and Community Affairs v. The Inclusive Communities Project—two cases that, according to Mincberg, represent “attempts by the far right to push legal theories that had been rejected by the lower courts over and over again.” The fair rulings in both cases have led many analysts to assume an overall shift left in the Court; however, Mincberg asserts that their inclusion on the docket in the first place contradicts this assumption.
Finally, Blue reviewed reactions from the Religious Right regarding the marriage decision from this session. Presidential candidates and conservative pundits alike have voiced their disapproval of the decision, with responses ranging from terrorist attack predictions to calls for a revolution. “This is a defining moment for the Religious Right,” said Blue. “It’s a test of whether the movement can survive into the future as it exists now.”
At the end of the briefing, Courtney asked the panelists about the next session of the court, including a union case, Friedrichs v. California Teachers Association, that was recently added to the docket. Raskin labeled the case as “the new wedge to destroy unions,” and another GOP attempt to use legal doctrine to undermine progressive initiatives like public sector unions.
Listen to the full briefing here:
In our current political landscape, moneyed interests frequently use their financial leverage to impact policy. For instance, Wall Street banks lobbied against a bill introduced by Sen. Elizabeth Warren that would help relieve students of their loan debt. For every dollar the fossil fuels industry spends on lobbying, it receives $103 in government subsidies. Now in New Hampshire, special interests are looking to change the state’s longstanding fiscal policy in their favor.
New Hampshire Representative Timothy Smith credits the state’s ability to stay afloat financially without imposing a sales or income tax with its substantial business taxes, which bring in sizable amounts of revenue. However, that might change with the introduction of a bill by 13 Republican senators that would significantly lower the business tax, creating a hole of $90 million in the budget. Rep. Smith connected the introduction of this legislation to the fact that special interest groups, many of which would benefit from this change, spent over $900 thousand in New Hampshire’s legislative elections last year.
Not surprisingly, New Hampshire residents are unhappy with the growing trend of big money influencing politics. Over two-thirds of the state’s voters believe that a constitutional amendment that would overturn decisions like Citizens United should be implemented. Sixty-nine state localities have passed resolutions calling for such an amendment, and over 120 small businesses are hosting Stamp Stampede stations, where patrons can stamp phrases like “not to be used for bribing politicians” on their bills.
Rep. Smith co-sponsored a bill that called for an amendment to get big money out of politics, which passed in the New Hampshire House with bipartisan support. In addition, New Hampshire Governor Maggie Hassan dismissed the business tax reductions as “unpaid for tax cuts to big corporations” that would “put corporate special interest ahead of New Hampshire's families.” Officials in the state government are listening to their constituents’ concerns about the harmful effects of big money in politics.
“Our constituents are trying to tell us something. They’re tired of their government serving lobbyists rather than citizens,” said Rep. Smith.
Voters Are Concerned About the Influence of Big Money in 2016
Last week the Wall Street Journal and NBC published the results of a poll on various issues leading up to the 2016 presidential elections, showing that the influence of wealthy donors on elections is a growing concern among Americans.
Thirty-three percent of those surveyed say that the influence of wealthy donors is their biggest concern in the 2016 presidential race. Although the majority were Democrats, big money in politics was the issue with the most agreement between the two parties, only a seventeen percent gap separated Democrats and Republicans. The poll suggests that the influence of the wealthy is becoming less of a partisan issue, and more of a general anxiety for Americans when it comes to elections.
The poll also revealed that
“the influence of wealthy donors was the primary concern for independents.”
This can and should influence the positions of the 2016 candidates as they seek to win over swing voters. Whether the growing anxiety amongst Americans about big money in politics will lead to changes in campaign finance remains uncertain, but the heightened awareness may bring the issue to the forefront of the 2016 race.
This post by PFAW and PFAW Foundation Senior Legislative Counsel Paul Gordon was originally published in the Huffington Post.
Ted Cruz, Bobby Jindal, and other conservative leaders have recently lashed out against the Supreme Court's decision on marriage equality by proclaiming that local clerks who don't personally agree with marriage equality should not be required to issue marriage licenses or perform weddings for same-sex couples - even though it's their job to provide that service to the public.
Their logic is fundamentally flawed. Civil marriage is a civil function, not a religious one. Government employees allowing someone to access their legal rights are not doing anything religious, nor are they condoning the actions being licensed any more than with any other type of license.
That's why when government employees in our country have had religious objections to divorce and remarriage, they have still had to do their jobs. And when government employees have had religious objections to interracial marriages, they have still had to do their jobs. So, too, have government officials with other religious objections to whether or how certain couples get married.
But when the particular religious belief in question is opposition to lesbians and gays, that's apparently a different matter altogether. Now, suddenly, we're told that government employees need to have their religious liberty "protected."
A principle of religious liberty that is invoked only in the context of one particular religious belief is no principle at all. It is a pretext.
The far-right movement that is coalescing around these "protections" allowing civil servants to impose their religious beliefs on others and deny them service does not have clean hands in this regard. While they proclaim loudly that they just want to "live and let live," the policies they have pursued vigorously for decades have aggressively sought to prevent LGBT people from having basic human rights. The Right's new clamor for "protections" is just another form of homophobia.
If the religious right simply wanted to "live and let live," they would not have spent these past decades seeking to impose their religious beliefs about homosexuality on others both through custom and through force of law. They would not have boycotted television networks for airing shows portraying LGBT people as ordinary people. Nor would they have screamed bloody murder when popular celebrities came out of the closet. They would not have fought to prevent us from raising children. They would not have battled to ensure that surviving members of couples be denied Social Security survivor benefits. They would not have opposed letting us serve our country in the intelligence services or in the military. They would not have put so much energy into convincing Americans that we are sexual predators going after their children. They would not have tried to bar us from teaching in public schools. They would not have threatened us with criminal prosecution just for our private, consensual sexual conduct.
Whether it's religious refusals specific to marriage, more general Religious Freedom Restoration Acts in a post-Hobby Lobby world, or Sen. Mike Lee's misleadingly named "First Amendment Defense Act," the Right is yet again attacking LGBT people. With a growing number of Americans - and now the Supreme Court - affirming that the right to marry is a right guaranteed to all regardless of sexual orientation, some on the Right have come to understand that their best tactic to fight marriage equality is to couch their homophobic goals with the language of "religious liberty" instead of explicitly speaking out against LGBT rights. But it's up to all of us to make sure that they do not succeed in these efforts to portray themselves as virtuous defenders of religious liberty, because in reality they're just waging another war against LGBT people.
PFAW activists and allies are continuing to pressure Sen. Kelly Ayotte for her reluctance to support a constitutional amendment that would overturn cases like Citizens United.
A group of New Hampshire activists, many of whom have worked to pass local resolutions in their towns in support of an amendment, met with Sen. Ayotte’s legal counsel in May to deliver over 12 thousand petitions in support of the Democracy For All Amendment— a federal constitutional amendment that would allow Congress and the states to set reasonable limits on money in elections.
Over a month later, her office has given no indication she will support the Democracy For All Amendment.
In previous public statements she has characterized a constitutional amendment as “dangerous.” And in a recent form letter to activists, Sen. Ayotte wrote,
By creating a "carve out" to the First Amendment that gives politicians the power to limit free speech and stifle political dissent, the Udall proposal jeopardizes all Americans' freedom of speech rights - and essentially says that our Founding Fathers got it wrong. It would also alter the First Amendment in ways that jeopardize more than political speech.
Of course, we know this issue isn’t about protecting free speech; it’s about everyone having an equal say in our elections and not having their own voices drowned out by a flood of big money.
In light of Sen. Ayotte’s clear refusal to recognize the influence of money in politics as stifling the voices of all Americans, PFAW activists and allies created photo petitions this weekend to send Sen. Ayotte a clear message about why 69 percent of New Hampshire voters support a constitutional amendment.
Today, on the second anniversary of the Supreme Court’s decision in Shelby County v. Holder, People For the American Way joins a diverse group of civil rights and voting rights advocates in Roanoke, Virginia to rally for a restored Voting Rights Act (VRA). Minister Leslie Watson Malachi, director of African American Religious Affairs at People For the American Way, is addressing the crowd. Below are her remarks, as prepared.
Hello everyone. I am Minister Leslie Watson Malachi and I’m the director of African American Religious Affairs at People For the American Way.
It’s been two years since the Supreme Court gutted the crown jewel of the Civil Rights Movement. Two years since Justice Scalia claimed that protecting the right to vote somehow represents “racial entitlement.”
The Voting Rights Act, when it was whole, was one of the most important tools we had for confronting a very ugly entitlement: the entitlement of those who think that certain votes and certain voices should matter more than others. It helped interrupt a phenomenon that is still alive and well – the ongoing devaluation of the votes, and the lives, of Black Americans. The racist massacre at Emanuel AME church in Charleston provided a horrific reminder of that reality.
The VRA gave a sense of security and safety that translated beyond just security and safety in the voting booth. After the VRA, we had the election of first-time African Americans in mayoral and gubernatorial seats post Reconstruction. The Voting Rights Act was more than a piece of public policy. It was a statement, enshrined in law, about the value of African American lives and voices.
So far, Congress has failed to restore that statement, those protections. What kind of message does that send?
Chairman Goodlatte, we are here in your backyard to demand that you and your Republican colleagues do better. Stop ignoring racial discrimination at the polls. Stop ignoring the calls from Americans of all political stripes and restore the VRA.
In the past two years, politicians in cities and states that were once protected by the federal oversight of the original VRA have been passing laws that make it harder for people of color to vote. These politicians didn’t waste any time in turning back the clock on progress we’ve made toward making sure that all Americans can participate in our democracy.
Congress shouldn’t waste any more time in doing just the opposite: restoring the Voting Rights Act and protecting every person’s right to cast a vote that counts.
Fifty years ago, courageous men and women died fighting for these protections. They knew that the right to vote is the most precious right we have in a democracy. We can’t let their legacy come undone.
The right-wing tactic of pushing discriminatory policies under the guise of religious freedom is nothing new -- we’ve already seen it used to hurt LGBT people in North Carolina, Louisiana, and elsewhere across the country. But now Republican lawmakers are going a step further, by attacking anti-discrimination legislation meant to protect Americans who aren't even represented in Congress.
The legislation is Washington, DC’s Reproductive Health Non-Discrimination Act (RHNDA), which would protect workers from being fired or punished by their employers for things like using birth control, getting pregnant without being married, or having an abortion. DC’s City Council recently passed RHNDA, and now Congress is using its (fundamentally undemocratic) authority to reverse DC’s local laws to repeal it on the grounds that it violates the religious freedom of employers. Last week, the House Appropriations Committee approved a rider that would block DC from using local funds to enforce RHNDA.
Today, Congresswoman Eleanor Holmes Norton (D-DC) held a press conference in DC, where she denounced these congressional attacks and praised the DC employers who have vowed to embrace RHNDA’s protections anyway.
“Republicans do not understand how united this city is against discrimination, and they do not need to; they just need to let the District be the District... Our Republican opponents claim that the Reproductive Health Non-Discrimination Act will allow pro-choice employees of anti-choice organizations to espouse their own personal pro-choice beliefs. That falsehood must be met with the truth that employees must carry out the mission of their employer.”
Nearly 33,000 people have already signed PFAW’s petition telling Congress not to meddle with DC’s Reproductive Health Non-Discrimination Act.
Yesterday 130 senators and representatives urged President Obama to issue an executive order requiring companies that receive government contracts to disclose their political spending. A letter signed by more than one hundred representatives highlighted the lack of transparency in our current system and the important steps the president can take to help fix this:
Taxpayers have a right to know where their money is spent and you have the power to ensure that the American people can obtain this information. With public funds come public responsibilities, and any company receiving federal tax dollars should be required by executive order to fully disclose their political spending in a timely and accessible manner.
A letter signed by 26 senators echoed this call, arguing that an executive order would help restore confidence in our political system:
In our view, campaign finance disclosure is another issue that demands immediate action to restore the public’s faith in our democracy.
It’s not just members of Congress who are calling on the president to act. More than 83,000 PFAW members and supporters have signed our petition to the president urging him to issue an executive order. Several thousand more contacted their members of Congress asking them to sign on to the letters sent yesterday.
Right now corporations can spend unlimited amounts of money to influence elections, and they can do so in secret by funneling that spending though “dark money” groups. But if President Obama were to issue an executive order, some of the nation’s biggest corporations – like Exxon Mobil, Lockheed Martin, and any other government contractor – would have to disclose their political spending.
President Obama himself has called for a more transparent and accountable democracy. In his State of the Union address in January, he criticized “dark money for ads that pull us into the gutter” and called for a “better politics.” Now is the president’s chance to help create that “better politics.”
Political and religious leaders opposed to marriage equality have been ramping up the intensity of their rhetoric in the weeks leading up to the Supreme Court’s imminent decision on the constitutionality of state laws banning same-sex couples from getting legally married. Some have warned of revolutionand civil war if the Supreme Court recognizes that there is no gay exception to the Constitution’s guarantee of fair and equal treatment under the law.
Political and religious leaders opposed to marriage equality have been ramping up the intensity of their rhetoric in the weeks leading up to the Supreme Court’s imminent decision on the constitutionality of state laws banning same-sex couples from getting legally married. Some have warned of revolution and civil war if the Supreme Court recognizes that there is no gay exception to the Constitution’s guarantee of fair and equal treatment under the law.
One recent salvo in this rhetorical campaign was a full page ad in the June 10 Washington Post in the form of an open letter to the Supreme Court. The headline read, “We ask you not to force us to choose between the state and the Laws of God.”
“We are Christians who love America and respect the rule of law,” the ad said, “However, we will not honor any decision by the Supreme Court which will force us to violate a clear biblical understanding of marriage as solely the union of one man and one woman.”
Similar statements can be found in the“Pledge in Solidarity to Defend Marriage”put together by the same people behind thePost ad. And it’s not much different from language in the Manhattan Declaration, a 2009 manifesto written by former National Organization for Marriage chairman Robert George (right) and signed by an array of conservative religious leaders. The Declaration declares that its signers will not “bend to any rule purporting to force us to bless immoral sexual partnerships, treat them as marriages or the equivalent, or refrain from proclaiming the truth, as we know it, about morality and immorality and marriage and the family.”
The Post ad suggested that a pro-equality ruling would “unleash religious persecution and discrimination against people of faith,” a statement that ignores the many people of faith who do support full equality for LGBT people. The ad was signed by a bunch of far-right anti-gay activists. Here’s just a sampling:
Let’s put aside all the preening about Religious Right leaders’ willingness to endure prison and martyrdom and consider what they’re really after.
First, we can dispense with the notion that they’re just looking for a “live and let live” world in which “Gays and lesbians have a right to live as they choose; they don’t have the right to redefine marriage for all of us.” In fact, religious conservatives have opposed every advance in cultural acceptance and legal recognition of the equal rights and dignity of LGBT people, including efforts to protect us in laws targeting violent hate crimes, allow us to serve openly in the military, and prevent us from being discriminated against in the workplace.
Robert George, co-author of the Manhattan Declaration and a founder of the National Organization for Marriage, wrote the legal brief filed by Focus on the Family and the Family Research Council in the Lawrence v Texas case, defending state laws that made gay people de facto criminals. NOM’s current chairman John Eastman said just this month that he hopes Uganda quickly puts its notorious anti-gay law back into force, a law that included penalties of life in prison for repeat offenders. Other right-wing religious leaders have traveled the globe, from South America to the Caribbean, from Uganda to Russia, Eastern Europe to Central Asia, to support laws that make gay people into criminals for living as they choose, sometimes even for advocating on behalf of LGBT people.
Back here in the U.S., conservative evangelical leaders and their allies at the U.S. Conference of Catholic Bishops falsely portray LGBT equality and religious liberty as fundamentally incompatible, a zero-sum game. That’s their justification for opposing civil unions as well as marriage equality – even for opposing laws to protect people from being fired just for being gay.
The reality is that religious liberty has continued to flourish, and our religious landscape has grown more diverse, in the decades thatpublic attitudes toward gay people have shifted dramatically toward equality. There has been no effort to require clergy to marry mixed faith couples if their faith prohibits it, and nobody wants to force any church or priest to marry or give their religious blessing to same-sex couples.
Next, let’s consider whether all this line-in-the-sand drawing is really about the supposed need for clergy, organizations, and business owners to enforce their religious beliefs about marriage in the public arena. The Catholic Church does not give its religious blessing to marriages involving people who have previously been married and divorced, unless the previous marriage is religiously “annulled.” But Catholic organizations are not loudly advocating for the right of a Catholic business owner to treat opposite-sex couples differently based on whether or not their marriages have the church’s blessing.
Similarly, many evangelical leaders say marriage is meant to be between one man and one woman “for life.” Yet in spite of the biblical passage in which Jesus says that a man who divorces his wife, for any reason other than sexual immorality, and marries another woman is committing adultery, there is no clamor from Religious Right leaders celebrating discrimination against people in second and third marriages.
It is clear that a different standard is being applied to same-sex couples. But anti-gay prejudice — animus is the legal term – is not an acceptable basis for discrimination, even if it is grounded in religious belief.
Now, there’s a reason Religious Right leaders are trying to make the conversation around marriage be about the grandmotherly florist who was fined when she declined to provide flowers for a gay couple’s wedding, or the conversation about contraception about the Little Sisters of the Poor, who say they don’t want to facilitate abortion. It’s an effort associate the Right’s agenda with a “live and let live” ideal that is appealing to many Americans, regardless of religion or politics.
But here’s the problem: Once you establish the principle – as Supreme Court conservatives did in their Hobby Lobby decision last year – that business owners as well as individuals and organizations should be able to ignore laws that somehow offend their religious beliefs, you have to figure out how far people will be allowed to run with it. It is not yet clear where the justices will draw the line.
That kind of line-drawing is often challenging when dealing with questions about how the government can accommodate religion without government impermissibly favoring it. Religious denominations and houses of worship have the greatest level of protection against government interference; courts and legislatures wrestle with the status of religiously affiliated nonprofits. Until Hobby Lobby, the Court had never ruled that a for-profit corporation could “exercise religion” in a way that is protected by the Religious Freedom Restoration Act, but now that door has been opened, it is not clear what kinds of anti-LGBT discrimination it could permit.
Anti-equality religious and political leaders have made it clear that they will continue to oppose marriage equality even in the face of a Supreme Court ruling striking down state marriage bans. Some are calling for massive resistance and urging state leaders to refuse to comply with a pro-equality Supreme Court ruling. Professors Douglas NeJaime and Reva B. Siegel have argued in the Yale Law Journal that in such a situation, in which there is a well-organized movement dedicated to pushing the religious exemption further and further, an accommodation may actually be more likely to extend the culture war conflict than resolve it.
It is worth addressing generally fair-minded people who don’t understand why the gay rights movement won’t just be happy with a marriage win and let a few people with religious objections “opt out.” Some people may think it’s no big deal for gay couples to find another florist or baker. For one thing, that approach discounts the humiliation of being turned away from a business, a violation of human dignity that was a motivating force behind laws banning racial discrimination in public accommodation. And it may not be such a small obstacle in smaller, conservative, religiously homogenous communities, where discrimination may flourish if it is invited by law and encouraged by local religious leaders.
Consider the anti-abortion movement as a cautionary tale.
Shortly after the Supreme Court’s ruling in Roe v Wade, laws were passed to allow doctors who had religious objections to performing abortions to refuse to do so without experiencing negative professional consequences. There has been little opposition to such laws. But over the past few decades, at the urging of anti-abortion activists, the scope of that kind of religious exemption has been expanded wildly to include people ever-further removed from the actual abortion procedure, and expanded to include even marginal participation in the provision of contraception. In emergency situations these accommodation could come at high cost, including the life of a patient.
Exemptions have been extended to or claimed by nurses who don’t want to provide care to women after an abortion, pharmacists who don’t want to dispense a morning-after pill prescribed by a woman’s doctor, even a bus driver who refused to take a woman to a Planned Parenthood facility because he said he suspected she was going for an abortion.
NeJaime and Siegel describe these as “complicity-based conscience claims” – claims that are about refusing to do anything that might make one complicit in any way with another person’s behavior that one deems sinful. They note that the concept of complicity has been extended to allow health care providers not to even inform patients that some potential care or information has been withheld from them based on the religious beliefs of an individual or the policies of an institution.
The resistance to complying with the requirement under the Affordable Care Act that insurance plans cover contraception takes the notion of complicity to almost surreal lengths. Just days after theHobby Lobby decision, the Court’s conservatives sided provisionally with religious conservatives who are arguing that it is a burden on their religious freedom even to inform the government that they are refusing to provide contraceptive coverage, because that would trigger the process by which the coverage would be provided by others. Cases revolving around the simple act of informing the government of an objection are working their way back toward the Supreme Court.
Similarly, some advocates for broad religious exemptions argue that organizations taking taxpayer dollars to provide social services to victims of human trafficking or women who have been victims of rape as a weapon of war should be able to ignore government rules about providing those women with access to the full range of health care they may need. Some groups are saying it would violate their religious freedom even to notify the government when they refuse to provide information or care – such as emergency contraception for teens that have been sexually abused by their traffickers. But keep the public dollars flowing our way!
Given what we know about the intensity of the anti-gay movement’s opposition to marriage equality, it is not hard to imagine how far that movement could run with the principle that religious beliefs about “traditional” marriage are a legitimate basis for discriminating against same-sex couples. They themselves have claimed as a model the (dismayingly successful) 40-year campaign since Roe v Wade to restrict women’s access to reproductive health care. In the words of the Heritage Foundation’s Ryan Anderson, “Everything the pro-life movement did needs to happen again, but on this new frontier of marriage.”
Where will a similarly aggressive campaign against marriage equality lead? There is a new law in North Carolina allowing magistrates to refuse to marry same-sex couples. A new law in Michigan allows adoption agencies functioning with government money to refuse to place children with same-sex couples.
Will corporations be allowed to refuse to hire someone married to a same-sex spouse based on the beliefs of the people who run the company? Will Catholic hospitals, which play an increasingly significant role in our health care system, be able to refuse to recognize same-sex spouses in medical emergencies?
The progress that LGBT people have made toward full equality has been remarkable. In my lifetime, the federal government had a formal policy to fire “sex perverts” and prevent them from getting federal jobs. In my lifetime, state laws criminalizing same-sex relationships were used to fire people from government jobs and even take parents’ children away from them. Even today, in a majority of the states, gay and lesbian people have no protection against being fired for who they are – or who they marry, even if the Supreme Court makes it illegal to keep those weddings from taking place. In all too many places, a company could fire an employee who marries a same-sex partner, the way Catholic schools across the country have been doing.
The good news is that Americans are increasingly opposed to anti-gay discrimination. Most of the laws that were proposed this year tolegalize anti-gay discrimination on the basis of religious belief failed – often thanks to the pro-equality voices of business and religious leaders as well as the hard work of LGBT people and their friends and families and our advocacy organizations.
Most informed observers think the Supreme Court will rule in favor of marriage equality. If that’s what happens, it will be a historic victory and cause for celebration. But as the signers of the recent WashingtonPost ad have made clear, it will not be the end of the struggle.