This op-ed was originally published at The Huffington Post.
Over the last twenty years, 19 states have passed laws modeled on the federal Religious Freedom Restoration Act (RFRA), which was enacted in 1993 with broad bipartisan support. But just this year, almost the same number, 15, have seen such bills introduced, generating enormous controversy across the country, particularly in Indiana where Gov. Mike Pence signed the new state RFRA into law.
Why the huge uptick now? As one of those involved in the original drafting and passage of RFRA in 1993, I think it's a combination of the perceived dangers to the far right from the move towards LGBT marriage equality and the perceived opportunity created just last year by the 5-4 Supreme Court's rewriting of RFRA in Burwell v. Hobby Lobby.
Even before the Supreme Court agreed to decide the marriage equality issue, the far right has highlighted the supposed dangers to small businesses like bakers and florists who do not want to serve LGBT couples because of religious objections. Under RFRA as passed in 1993, and under the protection from the First Amendment's Free Exercise doctrine that it was meant to restore, RFRA wouldn't have offered much help. First, neither had been applied to non-religious corporations, which had never been thought to have religious freedom rights. Second, it would have been very hard to argue that a neutral law banning discrimination against LGBT people would have created a "substantial burden" on actual religious exercise, which is required to qualify for a RFRA-type exemption. For example, in one case the Supreme Court rejected the claim that requiring federal welfare recipients to submit social security numbers was such a burden even when it conflicted with an applicant's religious beliefs. And even if such a burden were created by obeying an anti-discrimination or other general law, pre-Hobby Lobby law would not have helped a religious claimant: as the Court ruled in rejecting a religious exemption to a requirement that a religious farmer withhold social security taxes, such an exemption would improperly "operate to impose the employer's religious faith on the employees" and others.
But then came Hobby Lobby.
In that case, writing for a bare majority of the Court, Justice Alito ruled that religious objections by a corporation's owners exempted them under RFRA from providing contraceptive coverage through insurance to employees under the Affordable Care Act. As Justice Ginsburg explained in dissent, rather than interpreting RFRA to restore prior case law, the majority interpreted it as going beyond prior Court decisions to maximize benefits to religious claimants. In particular, she explained, the Court effectively re-wrote RFRA so that it could be invoked by for-profit corporations, and so that the original law protecting individuals against a "substantial burden" on the exercise of religion was transformed to allow claims by a business owner that complying with a neutral law offended their religious beliefs in some way. Under the majority's view, Justice Ginsburg suggested, RFRA could be interpreted to "require exemptions" in cases where religious beliefs were used to justify actions that discriminated on the basis of race, gender, and sexual orientation. Pointedly, Justice Alito responded only that "prohibitions on racial discrimination" would be safe from a RFRA exemption claim, but said nothing about gender or LGBT status.
So for far-right activists and legislators concerned about LGBT marriage equality and other rights, Hobby Lobby provided the perfect opportunity: pass state RFRA laws and effectively grant a religious exemption claim from LGBT anti-discrimination laws and local ordinances, based on the Court's re-writing of RFRA's language. Indeed, in communicating with supporters about the Indiana RFRA law, the far-right Family Research Council specifically called it the "Hobby Lobby bill."
Even better, rhetoric directed at outsiders could be cloaked in general language about protecting religious freedom, not attacking LGBT rights. Supporters could even invoke Democratic supporters of RFRA like President Clinton and claim that neither RFRA nor its state counterparts had been interpreted to allow discrimination, as Indiana Gov. Pence has tried to do. These claims ignore the fact that it wasn't until last year that the Supreme Court effectively rewrote the language in RFRA so that it was transformed from a shield for religious liberty into a sword against anti-discrimination protections. And previous supporters like President Clinton have made clear their opposition to this year's state RFRA proposals.
Under pressure, the neutral façade of recent state RFRA proposals has crumbled. When pushed to amend a state RFRA proposal in Georgia to make clear that it could not be used against anti-discrimination ordinances, a Georgia legislator admitted that one of the reasons for the bill was to allow it to be invoked by the small business owner who had religious objections to providing services to an LGBT couple. And when an amendment was added in the Georgia House Judiciary Committee to state that the RFRA bill was not to be used against discrimination laws, the bill was promptly tabled on March 26, with a supporter stating that the amendment would "gut" the bill.
As of now, the fate of RFRA bills in Georgia and elsewhere is uncertain and Gov. Pence has asked the legislature for an amendment to "clarify" that Indiana's RFRA law cannot be used to deny services to anyone. That would be a welcome step - one that flies in the face of the clear intent of some of the bill's backers, which was clearly to enshrine such a "right" for Indiana businesses. Language has been adopted elsewhere to make clear that state RFRAs cannot be used against anti-discrimination bills; such a provision is currently in Texas' RFRA, although there is a proposal to remove it. Before Hobby Lobby, such language might not have been necessary. After Hobby Lobby, it is crucial.
In another win for equality, today U.S. District Judge Richard Young struck down Indiana’s ban on marriage for same-sex couples. Because the judge did not stay the ruling, the Indianapolis Star reports that couples can begin getting married right away.
Not a single state marriage ban has been able to withstand a challenge in federal court in the wake of the Supreme Court’s 2013 decision in United States v. Windsor, which struck down part of DOMA.
As we like to remind anyone who will listen, the current GOP senate has been shameless in its enthusiasm for obstructing judicial nominees just for the sake of obstruction. For instance, a PFAW memo on August 2 reported that of 24 nominees then waiting for confirmation votes, 21 had been voted through the Senate Judiciary Committee with no recorded opposition. Instead of sending through at least the unopposed nominees in a voice vote and moving on with its business, the Senate decided to keep these potential jurists off the bench for as long as possible – despite the pressing problem of unfilled judicial seats leading to slowed down justice. Ultimately, 4 of those nominees were confirmed by the Senate before it left for its August recess, and 20 remain waiting. (The Washington Post this morning lamented that such “gamesmanship is not only frustrating but also destructive”)
This sort of thing is a clear example of obstruction for obstruction’s sake. But what about the nominees who do face some GOP opposition? Last week, The Atlantic’s Andrew Cohen took an in-depth look at some of President Obama’s nominees who were ultimately confirmed by the Senate, but who received more than 25 “no” votes. The reason? Most were opposed because of a record fighting for civil liberties or against big corporations. Here are a few of Cohen’s examples:
7th U.S. Circuit Court of Appeals Judge David Hamilton (Votes 59-39). Even though his local Federalist Society endorsed this nephew of former Congressional leader Lee Hamilton, Senate Republicans mostly didn't because, as a trial judge, Hamilton had issued this 2005 ruling which had infuriated the religious right. Citing Supreme Court precedent, Judge Hamilton had ruled that Indiana's legislative prayer before each session could no longer be "sectarian" and regularly invoke the name of Jesus Christ.
Northern District of Ohio Judge Benita Y. Pearson (Votes 56-39). The first black female federal jurist in Ohio almost didn't get the gig. The precise reasons why are unclear. The People for the American Way suggested that she was a member of an animal rights group and thus earned the wrath of those in the cattle industries -- although 39 "no" votes is quite a lot of beef to have against a pioneering jurist.
District of Colorado Judge William J. Martinez (Votes 58-37). By contrast, it is not hard to understand why this Mexico-born nominee roused so much Republican opposition on the floor of the Senate. Before he was nominated, Martinez advised the Americans with Civil Liberties Union and was a lawyer for the Equal Employment Opportunity Commission (just like Clarence Thomas before him, only Justice Thomas' EEOC experience evidently was a boon for his nomination). Of nominee Martinez, Sen. Jeff Sessions (R-Ala.) said: "It seems that if you've got the ACLU DNA you've got a pretty good leg up to being nominated by this president."
District of Rhode Island Judge John J. McConnell (Votes 50-44). It's also fairly clear why Judge McConnell almost didn't make it onto the bench. Senate Republicans didn't like him because the U.S. Chamber of Commerce didn't like him because, as a lawyer, McConnell had successfully sued Big Tobacco and fought for those harmed by lead paint. Evidently that's five Republican votes more serious in the Senate than ticking off Big Beef.
Northern District of California Judge Edward M. Chen (Votes 56-42). Like Judge Martinez, Edward Chen evidently was touched with the "ACLU gene," which rendered him objectionable to Senate Republicans. Sen. Charles Grassley (R-Iowa), whose state's Asian population is nearly three times lower than the American average, voted against Chen because he thought the well-respected former magistrate judge employed the "empathy standard" of judging.
District of Oregon Judge Michael H. Simon (Votes 64-35). Harvard educated? Check. Prior government experience with the Justice Department? Check. So why 35 "no" votes? Because Simon had worked for the ACLU. The seat he took on the federal bench, reported the Oregonian, had been vacant for 664 days, two months short of two years. How would you like to have been a litigant in Oregon during that time?
All of these nominees were ultimately confirmed – but not after plenty of stalling and debate over the value of “ACLU DNA” or of holding big corporations accountable for their actions. When we talk about the many nominees who are unopposed yet unaccountably stalled, it’s important to remember that the few nominees who do face GOP opposition don’t always face that opposition for the most convincing of reasons.
More and more Americans are fed up with freshman Senator Ron Johnson's single-handedly blocking the Senate from even considering the nomination of Victoria Nourse to Seventh Circuit Court of Appeals. Yesterday, the Milwaukee Journal-Sentinel reported that:
Johnson's decision to block the judicial nomination of a University of Wisconsin law professor has drawn a pointed letter of protest from a group of legal academics around the country.
Johnson has singlehandedly held up consideration of Victoria Nourse for the Seventh Circuit Court of Appeals, which reviews federal cases from Wisconsin, Illinois and Indiana.
"For a single senator from one state within the Circuit to assert a hold, months after the nomination was complete, undermines Wisconsin's merit-based selection system, blocking highly qualified nominees from a hearing and a vote," reads the letter to Senate Judiciary Chairman Patrick Leahy of Vermont and the panel's top Republican, Charles Grassley of Iowa. "The effect is an unbreakable one-person filibuster."
The professors say a "a nominee of sterling credentials who has served under both Republicans and Democrats" should not be subject to "unending delay." You can click here to see the letter and its 53 signatories, some of whom served under Republican presidents.
Indeed, the letter shows Nourse's support across the ideological spectrum. In addition to progressive legal scholars, signers also include conservatives like Randy Barnett (a senior fellow at the Cato Institute who has challenged the constitutionality of the healthcare reform law) and David Bernstein (author of Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform). The signers also include ten scholars from Wisconsin law schools. All agree that Nourse would make an excellent judge.
Nourse was originally nominated by President Obama more than a year ago after consultation with Wisconsin's two senators. Unfortunately, because of the unprecedented obstruction of qualified judicial nominees by Senate Republicans, Nourse was among the dozens of nominees who the Senate was prevented from considering before 2010 came to an end. President Obama renominated her in January, with the new Congress that now includes newly elected Senator Ron Johnson.
Johnson complains he should have been consulted before the renomination even though the appropriate consultation with Wisconsin's senators occurred when Nourse was originally nominated. Other states with new Republican senators have faced the same situation with the re-nominations of judicial nominees who were originally nominated last year. In every case but Wisconsin, the new Republican senator has allowed the nomination to go forward. Only Senator Johnson has refused.
46 years ago today, the Supreme Court issued its historic ruling in Griswold v. Connecticut, overturning the Connecticut state law that criminalized the use of contraceptives and recognizing that the Constitution protects the right to privacy. Five years after Griswold, Congress enacted Title X, which provides federal funding to family planning services for the uninsured and for low-income families. Griswold also paved the way for Roe v. Wade, which ruled that a woman’s choice to have an abortion was a constitutionally protected private decision.
But 46 years after Griswold, access to both contraception and abortion services are still under attack from the Right. Right-wing legislatures across the country just this year have passed numerous laws restricting women’s access to abortion. In addition, putting access to contraception and health care at great risk, Indiana last month adopted a law cutting off all state funding to Planned Parenthood.
Republicans in Congress are also going after access to contraception, in the form of Title X funding. In February, the House passed a budget bill that would put a stop to all Title X funding, including examinations to screen for sexually transmitted infections, breast cancer, and diabetes. The bill also included a provision to strip federal funding from Planned Parenthood. Those draconian provisions didn’t make it into law, but a provision preventing DC from using its own local tax dollars to help fund abortions for low-income residents did.
We’ve come a long way in 46 years…but we’re also still fighting many of the same battles to exercise the rights guaranteed to us in the United States Constitution.
The Republican drive to eliminate workers’ rights and bust unions has always been a partisan campaign to “defund the left” cloaked in language of ‘fiscal responsibility.’ Wisconsin State Senate Leader Scott Fitzgerald, one of the champions of his state’s anti-union law, even admitted that the plan to dismantle unions for public employees was to undercut progressive political activities and weaken Obama’s state reelection campaign, saying: “If we win this battle, and the money is not there under the auspices of the unions, certainly what you’re going to find is President Obama is going to have a much more difficult time getting elected and winning the state of Wisconsin.”
Now, the International Association of Fire Fighters has decided that it can’t afford to contribute to pro-union candidates on a federal scale because it needs to use its resources to fight back against the mushrooming threats to worker’s rights in GOP-controlled states like Wisconsin, Ohio, Indiana, and Alabama. Politico reports:
As newly elected Republican state legislatures aggressively push a slew of anti-union measures, the International Association of Fire Fighters is freezing its federal political spending and shifting all resources toward its beleaguered state and local colleagues.
“With the survival of our union and the ability to preserve and protect the rights, wages, and benefits our members deserve in jeopardy in the states, we have re-evaluated how to get the best results from our political dollars,” IAFF President Harold A. Schaitberger said Tuesday in an email blast to members that was obtained by POLITICO.
The move by the union is just the latest – and most dramatic – adjustment labor leaders are scrambling to make after Republicans across the nation in January tried to quickly push through new laws that would weaken the movement and its political influence.
In Wisconsin and Ohio, new laws would undermine the collective bargaining rights of most or all public employees. In Missouri, bills have been introduced to loosen wage and child labor laws. In Indiana, lawmakers sought to essentially ban public employee unions by becoming a right-to-work state. In Alabama, lawmakers have eliminated automatic union dues deductions from workers’ paychecks.
Poor and minority populations are again under attack in Ohio. With Ohioans putting all of our efforts into stopping Governor Kasich and Republican leaders from destroying workers’ rights, we’re being blindsided by a very troubling bill aimed at limiting access to the ballot box. Ohio’s new Voter ID bill, HB 159, which requires every voter to present a valid government issued photo ID in order to vote, sailed through the Ohio House of Representatives last week. This bill would put up unnecessary road blocks to the voting process and almost certainly cause mass confusion during next year’s presidential election.
Georgia’s Secretary of State, Brian Kemp, was Skyped in last week to testify to the Ohio House in favor of Voter ID restrictions. When asked by an Ohio legislator how many cases of voter fraud in Georgia led to the state’s Voter ID bill, he said “I don’t have a number in front of me,” adding, “It’s hard to put a number on it because you didn’t know that fraud was happening.” We then heard in-person testimony from the Deputy Secretary of State of Indiana (the same state where the current Secretary of State has been recently indicted on voter fraud). His answer to the same question was, “I can’t give you a number, however there were 2 people arrested in Indiana for voter fraud and no evidence of dead people voting.”
It costs between $21.75 and $25.75 to obtain an Ohio driver’s license. Should you need to purchase a birth certificate in order to get a drivers license, there’s an additional cost of $21.50. Paying somewhere between $40 and $50 is an unnecessary burden for many Ohioans in this uncertain economy. Imagine having to choose between paying for a state identification in order to vote and paying an overdue utility bill before disconnection. That’s not the kind of choice Americans should have to make.
In addition, racial minorities, the working poor, students and people with disabilities are twice as likely to lack a non-expired government photo ID.
In 2005, Ohio passed a law that imposed stricter ID requirements than federal law. Now, Ohio may become the most restrictive voting state in the country since this bill does not even permit voters to produce other forms of identification found to be acceptable in states that require identification. This bill would have national implications, considering Ohio’s historical position as “the” deciding state when determining the outcome of Presidential elections.
Shouldn’t we be making voting more accessible instead of making it restrictive and exclusive to a select group of people? The Republican Secretary of State doesn’t even support this bill, so why is the legislature pushing it through? The answer one Republican House member gave is, “Because we can.” As Ohio Representative Mike Foley put it, "There were 3,956,245 votes cast in the 2010 general election and there was one instance of voter fraud out of all of these votes cast. So we’re looking to spend somewhere in the $10-20 million range to deal with a .00000025 percent problem." With an $8 billion budget shortfall, we should be seeking ways to spend less money, particularly on a problem that doesn’t exist.
NPR reports today on Republican efforts to gut funding to Title X family planning clinics, which “serve 15 percent of women in the United States who obtain contraceptive prescriptions or supplies, or who receive an annual checkup for birth control.” In February, all but three Republican representatives voted for a budget proposal that completely nixed Title X funding, after approving an amendment that also strips Planned Parenthood of all federal funds. As NPR reports, Rep. Mike Pence, the sponsor of the Planned Parenthood amendment, actually thinks that Title X funding is a good thing….but is willing to use it as a bargaining chip to achieve his ultimate goal of decimating Planned Parenthood:
Supporters of defunding have characterized it as an effort to strip funds from Planned Parenthood and other organizations that use other funds to provide legal abortions, without singling out any particular group. The House in February voted 240-185 to defund Title X in the current budget year.
But even staunch anti-abortion legislators like Rep. Mike Pence, the Indiana Republican who has crusaded against federal funding for Planned Parenthood clinics, say that jettisoning the Title X program may be going too far.
"I've never advocated reducing funding for Title X," Pence said during a recent radio interview with the chairman of a county Right to Life organization in his home state.
"Title X clinics do important work in our inner cities," Pence said. "They provide health services for women and children that might not otherwise have access to them."
So, why have Republican House members set their sights on the $327 million that would fund the program this year?
The answer, largely, is Planned Parenthood and politics.
Social conservatives have pressed House Republicans to make cutting off federal funds to Planned Parenthood a priority; but they see room for negotiation over Title X funds.
The Right’s obsession with bringing down Planned Parenthood is destructive enough…that people like Pence are willing to put millions of women at risk to achieve it shows just how blind an obsession it is.
During Rep. Peter King's misguided King hearing on what he calls the " radicalization of Muslim American community," Republicans took time to speak about the purported threat of Sharia Law and myths about Muslim Americans' lack of cooperation with law enforcement officials. Rep. Yvette Clarke of New York was right on target when she called the hearings “political theater.” One by one Republican congressmen and their witnesses, none of whom were law enforcement officials, tried to defend the hearings despite ample evidence disproving their assumption that Muslim Americans are radical and dangerous. As Sheriff Lee Baca, a witness called by the Democrats, told the hearing, Muslim Americans consistently work with law enforcement and are far from the “enemy within” that the GOP represents.
Congresswoman Laura Richardson of California pointed to the clear connection between the King hearings’ use of scare tactics, false charges, and fear-mongering and Joseph McCarthy's ruthless investigations in the 1950s.
Congressman Andre Carson of Indiana, one of the two Muslims serving in Congress, discussed his own background in law enforcement and how by stigmatizing and marginalizing Muslim Americans, the GOP was undercutting cooperation between the community and law enforcement:
The two representatives exposed the King hearings as nothing more than a political stunt to ramp up the GOP’s drive to demonize Muslim Americans, while contributing nothing to law enforcement or national security.
Madison, Wisconsin’s police chief isn’t so happy about Gov. Scott Walker’s joking around with a caller who he thought was billionaire Republican donor David Koch. In his conversation with a reporter pretending to be Koch, Walker said that he had “thought about” planting troublemakers in the crowds outside the state’s capital to discredit pro-union protesters. Police Chief Noble Wray told the Milwaukee Journal Sentinel:
“I would like to hear more of an explanation from Governor Walker as to what exactly was being considered, and to what degree it was discussed by his cabinet members. I find it very unsettling and troubling that anyone would consider creating safety risks for our citizens and law enforcement officers,” the chief said.
“Our department works hard dialoging with those who are exercising their First Amendment right, those from both sides of the issue, to make sure we are doing everything we can to ensure they can demonstrate safely. I am concerned that anyone would try to undermine these relationships. I have a responsibility to the community, and to the men and women of this department - who are working long hours protecting and serving this community – to find out more about what was being considered by state leaders.”
h/t Think Progress
In both Wisconsin and Ohio, Republican governors are attempting to rush through legislation that would devastate workers’ rights that would in reality do little to help close their states’ budget shortfalls. Behind their proposals to strip public employees of their collective bargaining rights is actually a political power play to diminish the voice of organized labor in American politics, a move sponsored by corporate interest groups.
Wisconsin Governor Scott Walker’s desire to eliminate collective bargaining has more to do with political baiting than sound fiscal policy.
For example, Walker specifically exempts the four public employee unions that endorsed his gubernatorial bid in his plan to eliminate collective bargaining. Labor law professor Paul Secunda of Marquette University called it “the worst type of favoritism there could be.” And despite his claim to be a fiscal hawk, the Governor pushed through costly corporate giveaways that jeopardized the state’s balanced budget and rejected a Republican’s compromise bill that would permit only a temporary curb on collective bargaining while preserve unions’ financial concessions.
History shows that states that stripped their public employees’ collective bargaining rights did nothing to solve their fiscal problems. Policy Matters Ohio notes that while Indiana, Kentucky, and Missouri recently eliminated public workers’ bargaining rights, “the budget shortfalls of these states in 2010 ranged from 10.6 percent of general revenue fund (Indiana) to 14.5 percent (Kentucky) to 22.7 percent (Missouri), mirroring the fiscal crisis of states across the nation.”
Rather than solve the budget problems, doing away with a key right of workers only advances the agenda of the corporate interests funding Republican campaigns.
Jonathan Salant of Bloomberg looked into the ties between virulently anti-labor corporations like Koch Industries and Wal-Mart and the radical GOP proposals in Wisconsin and Ohio:
Koch, a closely held energy and chemical company based in Wichita, Kansas, is controlled by the billionaire brothers David and Charles Koch. Along with other corporations, Koch Industries has often opposed organized labor on regulation and free trade, Holman said. Now they see a chance to cripple unions in the name of balancing budgets, he said.
The $1.2 million in Koch support for Republican governors includes $1.1 million given to the Republican Governors Association, which spent more than $3.4 million in support of Walker, according to Common Cause, a Washington-based advocacy group that opposes the governor’s proposal.
In addition, Koch gave $43,000 directly to Walker, his single largest corporate source; $11,000 to the Wisconsin Republican party; $22,000 to Kasich; and $34,000 to the Ohio Republicans.
Koch also supported the 2008 campaign of Indiana’s Daniels, according to the National Institute on Money in State Politics. The Republican Governors Association, which received $25,000 from Koch, was the biggest source of campaign cash for Daniels, institute records show.
In addition, Americans for Prosperity spent $1.2 million in support of Republican candidates for Congress last year, Federal Election Commission records show. Koch Industries’ federal political action committee contributed $1.3 million to candidates for the 2010 elections, 90 percent of it to Republicans, according to the Center for Responsive Politics.
Wal-Mart Stores Inc., the Bentonville, Arkansas, subject of a campaign by the United Food and Commercial Workers Union, also contributed to the campaigns of Walker and Daniels, and donated more than $340,000 to the Republican Governors Association for the 2010 elections, according to the Internal Revenue Service and the National Institute on Money in State Politics.