Back in September, PFAW senior fellow Jamie Raskin wrote a preview of the major cases coming before the Supreme Court this term, one of which, Kiobel v. Royal Dutch Petroleum, deals with the ability of foreign nationals to sue corporations for human rights abuses in American courts. The Supreme Court today issued a sweeping ruling siding with the multinational corporations accused of abuse. Main Justice sums up the facts of the case:
The plaintiffs accuse Royal Dutch, the Shell Transport and Trading Company and their joint Nigerian subsidy of allowing, indeed encouraging, atrocities by the Nigerian military against people who were protesting environmental damage caused by drilling in the Niger Delta in the 1990s. The companies were complicit in beatings, rapes and mass arrests by paying the soldiers, feeding them and allowing them to use oil company property as staging areas for their attacks, the plaintiffs maintain.
At issue was the application of the Alien Tort Statute, enacted in 1789, that gives United States courts jurisdiction over civil actions brought by aliens alleging torts committed in violation of United States treaties or international law. The seldom-used ATS was enacted partly in response to piracy on the high seas. The Nigerian plaintiffs, now legal residents of the United States, tried to use it in a present-day context.
As Jamie Raskin wrote in his Supreme Court preview, the Second Circuit radically twisted legal precedent in this case to rule that individuals could not sue corporations under the Alien Tort Statute:
Jurisdiction to hear the suit was clear. In 2004, the Supreme Court held, in Sosa v. Alvarez-Machain, that the Alien Tort Statute gave federal courts jurisdiction to hear claims about torts committed against aliens that violate well-established international norms like the human rights norms implicated in this case. Yet a bitterly divided Second Circuit panel in Kiobel held for the first time that the statute does not allow courts to hear suits against corporations as opposed to individuals. The Kiobel majority’s ruling on this issue was amazing since the issue was never raised, never briefed, never argued and never decided in any of the proceedings below that took place over the course of nearly a decade. (This rings a bell for close observers of the Citizens United majority, which also pulled a rabbit out of a hat to ask and answer a question never raised below.)
Today, the Roberts Court agreed. The Court unanimously ruled against the Nigerians in Kiobel, but disagreed about how far the ruling should go. Justice Roberts, writing for the conservative majority, wrote a broad ruling in favor of the corporations accused of human rights abuses. The four moderate justices concurred with the majority’s ruling on this particular case, but left the door open for similar cases to be tried in U.S. Courts. Main Justice explains:
Justice Stephen G. Breyer wrote that the defendants’ “minimal and indirect presence in the United States was not enough to give American courts jurisdiction over the case.” But he stopped short of declaring that similar cases should never end up in American courts if the abuse at issue “adversely affects an important American national interest.” Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan agreed with him.
Nicole Flatow at ThinkProgress explains the possible implications of the majority’s ruling:
This decision not only means that Nigerians cannot sue foreign corporations for their conduct abroad. On this particular point, the four-justice Breyer concurrence agreed that this case did not pass muster. Roberts’ sweeping pronouncement against extraterritoriality may also mean that foreign nationals subject to abuse, for example, at the hands of a U.S. corporation that houses its factories in places whose laws shield it from liability, or an American citizen who commits human rights violations abroad against foreigners, also could not be subject to suit in the United States.
The scope of the opinion will not become clear until it is interpreted by courts. Extraterritoriality is a legal concept that asks not just whether conduct took place abroad, but also whether the claims “touch and concern the territory of the United States” such that a plaintiff can overcome the presumption against them. The only hint the court gives is that lawsuits against corporations will face a particularly heavy burden, noting, “Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.”
What is clear is that the presumption is exceedingly difficult to overcome, and that both individuals and corporations have a high chance of skirting liability simply by doing their dirty work elsewhere.
I am a 24-year-old, proud Floridian. My parents came to the U.S. from Colombia many years ago, looking for a safe and opportunity-rich place to raise their daughters. From the time I was a toddler, I have spent my whole life here in Florida. I received a great public education, participated in sports, and served as a member of a Christian youth group. I am also an undocumented American.
What does that mean in my day-to-day life? It means that despite my top grades in high school, I can’t get financial aid to go to college. It means that no matter how hard I study traffic rules or parallel parking, I don’t qualify for a driver’s license. It means that though I am proud to have been raised here in America, there is no waiting list I can join to one day become a U.S. citizen. The path is simply not there for me.
The Senate “Gang of 8” includes my senator, Marco Rubio, who has said he believes in a path to citizenship. “But,” I asked in an Orlando Sentinel op-ed last month,
“when push comes to shove, will Rubio support a meaningful path to citizenship? It can't be a path in name only; it must be clear and direct, not tied to arbitrary metrics around border security, like he has proposed. The path to citizenship can't be full of hurdles and trap doors, and it can't require a decades-long wait in line. No one should be blocked from citizenship and relegated to a lifetime stuck in second-class status.
Rubio's parents left Cuba and came to the U.S. for economic opportunity – the same reasons my parents left everything they knew, making sacrifice after sacrifice for my family's future. Would Rubio deny my family the same opportunity his family had?...It's time for Rubio to truly represent Florida – the immigrant families who came here seeking a better life and everyone who believes in a common-sense solution that doesn't involve deporting millions of hard-working men and women or forcing them into a permanent underclass. It's time for Rubio to step up, on behalf of his mother and my mother...”
And thousands of other mothers and fathers out there. My parents had a dream that I could grow up in the United States and get a world-class education. My dream for my parents is that they can see me and my sisters thrive and fulfill our potential – and for them to be part of the American dream, too. Right now that dream seems distant for my mom, who was stopped while driving without a license over six years ago and is back in Colombia. My dream is now my parents' dream. A dream that immigration reform will include family reunification and that my mom will return to the United States. I miss her every day.
I’m a Young People For Fellow, a member of the United We Dream Network, an undocumented American, and most importantly a daughter to the most courageous woman I have ever known. I hope that no other family has to endure the separation that mine has, but I know that so many others are suffering the same heartbreak.
Our country needs immigration reform that creates a path to citizenship and keeps families like mine together. The national conversation on immigration reform isn’t a distant policy debate – it’s a conversation about my life.
Evelyn Rivera, Seminole State College
Member of affiliate People For the American Way Foundation’s Young People For Program
The GOP seems to be stuck between a rock and a hard place.
Responding to last month’s Republican National Committee “autopsy,” the leaders of thirteen right wing organizations sent a letter this week to RNC Chairman Reince Priebus to “strongly recommend” a reaffirmation of the 2012 National GOP Platform—including strident opposition to marriage equality.
On the question of young voters and marriage equality, the letter states that “Republicans would do well to persuade young voters why marriage between a man and a woman is so important rather than abandon thousands of years of wisdom to please them.” The letter also explicitly warns the GOP leadership that “an abandonment of its principles will necessarily result in the abandonment of our constituents to their support.”
It seems like those right-wing groups will get their wish: the Washington Post reports that the RNC’s Resolution Committee passed a resolution reaffirming the 2012 platform yesterday which will be voted on by the full RNC tomorrow.
This incident highlights the degree to which the Republican Party is caught in a trap of its own making. Despite a dawning awareness that moderate voters reject the extreme agenda of the Right, the GOP can’t escape the reactionary anti-gay ideology that it’s exploited for so long.
The West Virginia Legislature has approved a resolution calling on Congress to propose a constitutional amendment overturning the Supreme Court’s 2010 decision in Citizens United v. FEC and related cases. This makes West Virginia the twelfth state to call for such an amendment.
People For the American Way has been working with activists in West Virginia to help rally support for the resolution. As PFAW Legislative Representative Calvin Sloan noted in a recent action alert, many West Virginians already understood the need to get big money out of politics:
“West Virginia has already seen the drastic need for a constitutional amendment to enact free and fair elections. In 2010, West Virginia’s congressional races attracted more than $15 million from outside groups such as American Crossroads and FreedomWorks, organizations that can, in the wake of Citizens United, raise and spend unlimited amounts of money in our elections.”
As a West Virginian, I am especially proud to see this resolution pass in my home state. While the states that have called for an amendment are diverse – stretching from Hawaii to Rhode Island – protecting the integrity of our democratic process is a core American value. As one West Virginia delegate pointed out,
“One of government's roles within this great democracy is making sure everyone has a voice.”
West Virginians are now formally joining the proliferation of voices across the country calling for a democracy of, by, and for the people.
This weekend, our Pennsylvania volunteers had their best canvassing trip yet- and not just because of the beautiful weather. 20 volunteers met in State Senator Lloyd Smucker’s district, spending their Saturday afternoon talking to 700 Pennsylvanians and collecting signatures for our petition to Republican lawmakers in Pennsylvania. We weren’t surprised to hear the same things we hear every time we talk to Pennsylvania voters about the Republican electoral college plans: shock, confusion, and disappointment that Republican lawmakers like Senator Smucker are trying to make Pennsylvania less important to national elections.
Again and again, we’ve seen these Republican lawmakers avoid discussion of this bill by saying it isn’t a priority- but we know this is just another attempt to pull the wool over voters’ eyes. We know they’re trying to get these plans through quietly and without debate. And we know that Pennsylvanians won’t stand for it. We’re keeping the pressure on, and we need your help to do it. On April 10, we're delivering more than 100,000 signatures of PFAW supporters against the electoral college rigging at the Pennyslvania State Capitol Rotunda. If you haven't done so already, it's not too late to add your name to our petition to Republican lawmakers in PA and other states telling them to abandon this effort. Or donate to support our campaign here.
After vocal opposition from People For the American Way and others, Speaker Thom Tillis of the North Carolina House announced yesterday that a resolution stating that North Carolina has the power to declare an official religion would not be brought to a vote. In effect, this means that the resolution has been dropped.
The bill claimed that the Establishment Clause of the Constitution’s First Amendment does not apply to states. But as People For the American Way President Michael Keegan noted in a statement on Wednesday,
“There’s no question that any attempt to establish an official state religion is blatantly unconstitutional. That’s true whether it’s North Carolina or the federal government.”
The proposal highlighted the extremes that Tea Party Republican lawmakers are willing to go to in order to push their dangerous ideology – even when it means ignoring core principles on which our nation was founded, such as religious liberty and the separation of church and state.
UPDATE (4/8/13): North Carolina Representative Harry Warren, one of the sponsors of the resolution, has now publicly stated that he “regret[s] any embarrassment or concern that it has caused the citizens of Rowan County and North Carolina,” calling the resolution “poorly written.” Warren’s explanation is, however, still problematic. He says he wanted a resolution that county officials have the right, despite the Establishment Clause, to open their proceedings with specifically Christian prayers. That, of course, flies against the Constitution.
Pennsylvania Republicans’ strategy to rig the Electoral College rests on their pushing their plan through quietly, without voters realizing what they’re up to. They know they can’t win if people are paying attention, because rigging the game isn’t fair, it isn’t popular, and it isn’t right for Pennsylvania. We’re not going to let their deception defeat Pennsylvanians’ democratic rights. We’re turning up the heat on the State Senate Majority Leader, Dominic Pileggi, who introduced the bill to rig the Electoral College. Last weekend, we led 14 Pennsylvanians on a canvass in Pileggi’s district to show him that Pennsylvanians know what he’s up to, and that he can’t get away with these underhand tactics.
Our volunteers knocked on over 1500 doors and talked to hundreds of voters- but we’re just getting started. More canvassing and phonebanking shifts are scheduled this week, and we’ll keep this up as long as state Republicans keep trying to rig the game. We’re showing Dominic Pileggi that Pennsylvanians know what he’s up to, they know what his plan would do to their state, and that they won’t stand for it.
People For the American Way’s Right Wing Watch has been closely following the Right Wing’s reaction to this week’s marriage equality arguments at the Supreme Court – which ranges from awkward homophobic discussions to outright threats of revolution.
Last night, our director of communications, Drew Courtney, went on PoliticsNation with Al Sharpton to discuss the Right’s reaction to the marriage cases. Watch it here:
Minister Leslie Watson Malachi, director of African American Religious Affairs at People For the American Way, delivered the following remarks to those supporting marriage equality in front of the Supreme Court today.
I greet you as one who is humbled to stand before you on this day that will be like none other and say celebrate, be glad in it, and keep standing for and with Hope!
Why Hope? As the Director of African American Religious Affairs of People For the American Way, Hope tells us DOMA will not stand but like Goliath, will fall.
Hope says same gender couples, in committed relationships will be recognized and receive those 1100 plus benefits now denied by the federal government. Hope defends what is right, Hope unites people and families, Hope stands with us and for us, and Hope is the American Way!
Why Hope? As an organizer and ally since 1996, Hope kept us waiting for this historic day. Hope gave us a process and a lesson to never take lightly judicial nominations, to make sure voter registration and mobilization is a core value, to rejoice in victories in 2012 from the proclamation from the highest officer holder in this country – President Obama - to 4 states making it 9 states total passing pro-Marriage Equality laws, and that our work in the states is not done. Hope hasn’t just strengthened those who have always believed in marriage equality. It’s brought others to reconsider their opposition and join us on the side of justice for all. Hope is why we have so many other new and welcomed allies for equality.
Why Hope? As a Christian, during this Holy Week, from our sacred text “hope that is seen is not hope”, so you have had and must hold on with unwavering confidence that help has arrived, is sitting in between the walls of the highest court of this nation, and speaking into existence freedom that will no longer be denied.
And finally, why Hope? As an African American woman, on behalf of the Equal Justice Task Force of African American Ministers In Action, Hope says the enemy is a liar when they say African Americans and lesbian, gay, bisexual, and transgender (LGBT) people are two separate - even hostile – communities, for “no weapon shall be forged against us” and no wedge can be driven between those who know oppression, discrimination, denial of basic civil and human rights. Hope connects the civil rights movement to the gay rights movement, the yesterday to today, the hopeful to the hopeless.
So Beloved, stay in Hope! Stay in Hope I say for if the Justices are about the business of justice, then they will speak against hate, division, intolerance, and barriers to “life, liberty and the pursuit of happiness” and strike down the Defense of Marriage Act.
Stay in Hope for my sacred text tells us what “man meant for harm, God intends for good”.
In this pivotal moment in our country's history, we must stand on the side of compassion and equality rather than on the side of oppression and discrimination. And that’s why we’re all out here on the steps of the Supreme Court today.
I leave you with these words, stay in Hope because it was the late Senator Ted Kennedy who said, and prayerfully he won’t mind me playing with it a little bit, “ For all those whose dreams have been our concern (to defeat all forms of discrimination), the work goes on (we are not going to stop trying until gay and lesbian Americans across the country have full legal equality), the cause endures (freedom to be, freedom to love, just freedom), the hope still lives ( I say again hope still lives), and the dream (for all persons to marry the person they love) shall never die.”
Be encouraged! Have faith. Expand love. Know peace. And may Hope, which is never silent, always be with you!
“What do we want? Equality! When do we want it? Now!”
This morning PFAW staff and members joined a crowd of thousands gathered in front of the Supreme Court to chant, march, and speak out in support of marriage equality. As Supreme Court Justices heard the first round of oral arguments on the marriage cases before them this term, multitudes of supporters gathered on the Court steps to share a simple message: our country is ready for marriage equality.
Today, the Court heard arguments on California’s anti-gay Proposition 8. Tomorrow, it will be considering the federal Defense of Marriage Act (DOMA). In the weeks leading up to today, we have been asking friends of PFAW to share why dumping DOMA is important to them. As I stood out at the rally this morning, I thought about all of the people who had been brave enough to share their story with us – and what this day meant to each of them.
For Bishop Allyson Abrams, a member of PFAW’s African American Ministers in Action, it’s time to dump DOMA “because it hurts and humiliates those who know love and who practice showing it each and every day.” For Sam Paltrow, member of affiliate PFAW Foundation’s Young People For Program, DOMA has to go because it “teaches that gay families do not matter,” and for Young People For member Erik Lampmann, it’s an “issue of economic justice.” Missoula City Councilmember Cailtin Copple, member of affiliate PFAW Foundation’s Young Elected Officials Network, “would like the chance to marry the person [she] loves someday.”
While each person at the Supreme Court rally today – and those at the marriage rallies in all 50 states across the country – had a different reason for being there, we had a common goal: Equality. Now.