In our first member telebriefing since Election Day, PFAW staff joined members and supporters on a call about how to fight back against Donald Trump and the dangerous far-right team he is putting in place.
Our communications, program, and Right Wing Watch staff detailed the unprecedented danger of the incoming Trump administration. Communications director Drew Courtney noted that Trump is “unquestionably… the most profound threat to the American Way and to the values that we care about that we have seen in the lifetime of this organization,” but pointed out that the way to answer this threat is, in many ways, to do the work we have always done as progressives: to stand firm in our values and fight back.
We discussed the alarming choices Trump is making for his team, in particular, civil rights foe Sen. Jeff Sessions, whom Trump plans to nominate for attorney general.
Right Wing Watch researcher Brian Tashman shared numerous examples of Sessions’ appalling record on various important issues including voting rights, immigration, and civil rights.
Executive Vice President Marge Baker described how, in response to Sessions’ nomination, the larger progressive community is already coming together to take action, with events like large-scale sign-on letters and petition deliveries. But this is just the beginning. We also discussed how we need to be making sure that our senators hear from us about the importance of this nomination—and that we shouldn’t write off senators from either political party, since all senators need to think carefully about whether they can support a nominee as unfit as Sessions.
“This is likely to be the very first big fight, and it’s really, really important that we fight this as aggressively as we possibly can,” Baker said.
The team also discussed the record of Education Secretary nominee Betsy DeVos, as well as some of the other dangerous selections Trump has made for his team.
You can listen to the full telebriefing here:
In a badly-needed boost to the rule of law and the nation's much-abused new health reform, a three-judge panel on the Fourth Circuit today rejected two attacks on "Obamacare." In one case, Virginia v. Sebelius, the appeals court found that the Commonwealth of Virginia lacked standing to challenge the individual mandate provision and in the other, Liberty University v. Geithner, it ruled that a challenge to the plan's financial penalty for not purchasing individual health insurance coverage was not ready to be heard since the penalty constitutes a tax and taxes may not be challenged until after they have gone into effect and been paid. Both decisions by Circuit Judge Diana Gribbon Motz are a breath of fresh air in a legal and political environment now polluted by partisan and ideological attacks on the health plan.
The decision in the Virginia case, brought by the state's Attorney General Ken Cuccinelli, was an emphatic victory for basic rules of federalism and judicial restraint. Judge Motz found that the court could not hear the case because Virginia lacked standing under long-established jurisdictional principles. As a state, Virginia suffered no "injury in fact" because of the individual insurance mandate it was challenging; the state itself is not "burdened" by it, state officials are not "commandeered" by it, and state sovereignty is not impaired in any way by it. Virginia asserted that it had standing because of a conflict between the new law and a state statute, the "Virginia Health Care Freedom Act," a statute which was transparently cooked up by the legislature for the sole purpose of creating a conflict with the federal health reform law. This state law simply declared that no resident of Virginia "shall be required to obtain or maintain a policy of individual insurance coverage." It had no enforcement mechanism and existed solely for purposes of organizing litigation against the national government. Judge Motz correctly found that, if this kind of metaphysical declaration were enough to create standing, a state could concoct jurisdiction to challenge any federal law just by writing a "not-X" statute. I recall that opponents of the health reform introduced the same meaningless legislation in Maryland and I took great pleasure in pointing out that it had no content. At any rate, Judge Andre Davis dissented from the decision, arguing that the standing problem was no big deal; he would have simply ruled that the individual mandate provision did not exceed Congressional power under the Constitution—and, on this point, he is clearly right.
The other decision, in the Liberty University case, was based on the significant new ruling that the individual insurance mandate is actually a form of federal taxation and the federal Anti-Injunction Act prevents the court from entertaining challenges to taxes until they actually go into effect and have been paid by the litigants. "A taxpayer can always pay an assessment, seek a refund directly from the IRS, and then bring a refund action in federal court," Judge Motz wrote, but the Anti-Injunction Act bars pre-enforcement actions. It is definitely of note that Judge Motz found that, under the Act, financial penalties and exactions are to be treated like a "tax." Both supporters and critics of the decision are noting that this may mark an effort to define and defend the individual insurance mandate as a legitimate exercise of the congressional Taxing power, but this may be over-reading into the court's interpretation of the Anti-Injunction Act, which does have its own body of rules and precedents.
It's not clear yet whether the disappointed litigants will try to take the case en banc to the full right-leaning Fourth Circuit or petition for appeal directly to the Supreme Court. All roads lead to the Supremes in this case since there is currently a split between the Sixth Circuit, which upheld the constitutionality of the individual mandate, and the Eleventh Circuit, which struck it down. In addition, the DC Circuit will be hearing oral arguments in a healthcare challenge in two weeks, so it, too, may add its voice to the discussion by the end of the year. At some point next year, the justices will have to grab the bull by the horns and decide whether they want to fully revive the class-driven judicial activism of the Lochner period by knocking down laws promoting public health and welfare.
The Supreme Court’s 2010 Citizens United decision was quickly followed by warnings of the disastrous consequences of opening the floodgates for corporate spending in future elections, but few would have predicted something as bizarre as what was recently discovered in Delaware.
“Restoring Our Future,” a pro-Romney Super PAC, recently received a generous donation of $1 million from W Spann LLC. However, little is known about the firm that only operated in the state for a period of four months, including even the most basic information about its owners. And experts suggest that this arrangement may well be illegal.
“If they put money into the corporation specifically for the purpose of making a political donation that would constitute, in my view, illegally making a donation to avoid disclosure,” says Paul Ryan of the Campaign Legal Center.
While individuals can of course make contributions to PACs and other political organizations, there are disclosure laws in place to help voters and watchdogs understand where the money is coming from. But because the owners of this corporation don’t need to make their names public, Ryan and others suspect the mysterious firm, W Spann LLC, was set up in order to make a large contribution and avoid disclosing any information about the money’s origins.
Ryan’s group along with other watchdog organizations such as the Public Campaign Action Fund and Democracy are calling on Delaware Attorney General Beau Biden as well as officials from the Justice Department and FEC to look into this questionable conduct. But as we wait to see what happens next, it’s clear that this is yet one more of the many examples illustrating how destructive the Citizens United decision has been to our democracy.
With the important elections in 2012 a little more than a year away, it is incumbent on our elected officials to enact meaningful remedies to ensure the integrity of our elections is protected.
A petition to repeal Ohio SB 5, which severely curtailed collective bargaining rights for public employee unions, was just certified by Ohio’s secretary of state and attorney general.
# of valid signatures required: 231,147
# of valid signatures obtained: 1,298,301
The Senate today confirmed three of President Obama’s nominees to fill long-vacant posts in the Justice Department, including, at long last, a leader for the DOJ’s Office of Legal Counsel.
The Senate confirmed attorney Virginia Seitz to head the Office of Legal Counsel, which hasn’t had a permanent, Senate-confirmed head since 2004. President Obama’s first nominee to fill the position, the well-respected and highly qualified law professor Dawn Johnsen, came under fire from Republicans for her support of abortion rights and opposition to torture, and withdrew her nomination last year after over a year of obstruction and gridlock
The OLC essentially acts as the White House’s private law firm, advising the president and executive branch agencies on the constitutionality of their actions
Besides Seitz, James Cole was confirmed to serve as Deputy Attorney General, a position that has been vacant since February 2010, and Lisa Monaco was confirmed to lead the DOJ’s National Security Division, which has been vacant since March.
On Election Day last year, while the polls were still open, Maryland Democrats received telephone calls late in the day telling them that Democratic Governor Martin O'Malley had won reelection, so they could "relax" (i.e., not vote). It was soon discovered that the calls were generated by an operative working for the campaign of O'Malley's Republican opponent, former Governor Bob Ehrlich. Yesterday, criminal indictments were handed down against a close Ehrlich aide and a political operative for their efforts to suppress the African American vote. According to the Washington Post:
One of former Maryland governor Robert L. Ehrlich Jr.'s most trusted aides and a campaign consultant were accused Thursday of orchestrating tens of thousands of anonymous election-night robo-calls last year that prosecutors said were part of a larger attempt to suppress the black vote.
Paul E. Schurick, 54, Ehrlich's de facto campaign manager, and Julius Henson, 62, a paid consultant, were indicted on multiple counts of election law violations stemming from an automated call that was placed to more than 110,000 Democrats in Baltimore and Prince George's County, according to prosecutors.
The indictments might be the first in the country involving Election Day attempts to suppress voting using robo-calls, experts said. The case also appears to be a rarity nationwide, one in which prosecutors might have the physical evidence necessary to prove intent to commit voter suppression, experts said.
"There is a long history in urban areas of people passing out fliers that say Republicans vote on Tuesday and Democrats vote on Wednesday, and specifically in Maryland of ploys telling people if you owe tickets or back child support that you can't vote," [Gilda Daniels, an elections law expert at the University of Baltimore Law School] said. "But this isn't someone printing off fliers that can't be easily tracked. These are phone calls, and there are records of them."
The Baltimore Sun provides some more details:
The indictment describes a document titled "The Schurick Doctrine" and says that it was "designed to promote confusion, emotionalism, and frustration among African-American Democrats."
The indictment quotes from the document: "The first and foremost desired outcome [of the Schurick Doctrine strategy] is voter suppression."
While the criminal case progresses, Maryland Attorney General Doug Gansler is pursuing a civil suit in federal court:
Gansler alleges that the robocalls were made with the intent to suppress and intimidate voters in predominately African-American Democratic neighborhoods. The attorney general says 112,000 such calls were made on election night, and if found to be violations, each carries a $500 fine.
Prior to President Obama’s December 22, 2010 signing of the Don’t Ask, Don’t Tell Repeal Act, then House Majority Leader Steny Hoyer (D-MD5) had this to say about the American promise of equality for all.
Nearly six months later, Minority Leader Hoyer’s message about fundamental rights being “self-evident, but not self-executing” rings true. Even as military leaders are working hard to train the troops for repeal implementation, and reporting back success:
Repeal opponents want to disrupt the mission through the FY12 Defense Authorization bill.
The Senate version of the bill is expected to be taken up by the Senate Armed Services Committee this week. Please help us make clear to the subcommittee and full committee that we want to keep repeal on track and free of harmful amendments.
Before I go, a special shout out to our friends at the Servicemembers Legal Defense Network for demonstrating that servicemembers are still waiting. We’re all still waiting. We need swift certification and effectuation of DADT repeal.
Yesterday, the Supreme Court ruled unanimously (with Justice Kagan recused) that former Attorney General John Ashcroft cannot be personally sued for alleged abuse of material-witness arrests in the days after the 9/11 attacks. In the weeks and months after 9/11, innocent people were being rounded up by the federal government with little to no evidence against them through abuse of the Material Witness Statute. However, the Justices agreed that what Ashcroft did was not in violation of "clearly established law" at the time, so he cannot be personally sued for money damages.
But that unanimity hides a deep divide on other issues. Justice Ginsburg's concurrence reminds us of the lawless nature of the Bush Administration. She asks:
what even arguably legitimate basis could there be for the harsh custodial conditions to which al-Kidd was subjected: Ostensibly held only to secure his testimony, al-Kidd was confined in three different detention centers during his 16 days' incarceration, kept in high-security cells lit 24 hours a day, strip searched and subjected to body-cavity inspections on more than one occasion, and handcuffed and shackled about his wrists, legs, and waist.
[His] ordeal is a grim reminder of the need to install safeguards against disrespect for human dignity, constraints that will control officialdom even in perilous times.
Americans should never forget the many ways that the Bush Administration violated basic American constitutional principles and the rule of law. After 9/11, People For the American Way Foundation led the nation in exposing and condemning the Ashcroft Justice Department's multifaceted threats to liberty.
Perhaps if the threats had been against Big Business's bottom line, today's corporate-funded Tea Partiers would have joined us in protecting the Constitution. Their silence then makes shameful their current efforts to appropriate the Constitution as uniquely theirs.
Question: When does a law saying "do not discriminate" really mean "discrimination is allowed"? Answer: Now, since Attorney General Holder yesterday refused to repudiate the Bush Administration’s seemingly deliberate misreading of federal law in the context of grants to faith-based organizations.
One of the gravest flaws of the Faith-Based Initiative that President Obama inherited and has since made his own is that it permits federally funded employment discrimination on the basis of religion. Numerous federal statutes creating grant programs specifically prohibit those receiving funds from engaging in employment discrimination. However, the Bush Administration’s Office of Legal Counsel (OLC) adopted a policy memo turning those provisions on their head.
According to the memo, requiring compliance with anti-discrimination laws as a condition of receiving federal funds can impose a substantial burden on the religious beliefs of faith-based grant recipients. Therefore, it reasoned, such a requirement may be impermissible under the 1993 Religious Freedom Restoration Act (RFRA), which prohibits the federal government from substantially burdening religious exercise unless that burden is the least restrictive means of furthering a compelling governmental interest. According to this harshly criticized legal memorandum, RFRA can be interpreted to let religious grantees ignore very specific nondiscrimination provisions within a federal grant program.
At a hearing before the House Oversight Committee yesterday, upon questioning by Rep. Bobby Scott, Attorney General Holder testified that the OLC memo is not being reconsidered. Even worse, when asked the Obama Administration has adopted that interpretation as its policy, Holder gave a meaningless and evasive answer. According to Congressional Quarterly (subscription required):
SCOTT: So if you're running a Head Start Program, they're running the Head Start Program they can discriminate, even though there's a statutory provision prohibiting discrimination? They can discriminate anyway?
HOLDER: What I'm saying is that in terms of -- with regard to that specific OLC opinion, we are not in the process of reconsidering it. That is not something that, as I understand ...
SCOTT: Well I'm not talking about the memo. I'm talking about the policy. Can they discriminate notwithstanding a specific statutory prohibition against discrimination; they can discriminate anyway based on that interpretation?
HOLDER: Obviously discrimination cannot occur, that is, that contravenes federal law.
Since whether an act of employment discrimination violates federal law is the focus of the debate, Holder’s response is not enlightening.
It is hard to believe that less than three years ago, candidate Barack Obama told an audience in Zanesville, Ohio that "if you get a federal grant, you can't use that grant money to proselytize to the people you help and you can't discriminate against them—or against the people you hire—on the basis of their religion."
Wisconsin Supreme Court Justice David Prosser was supposed to win reelection in a walk, after winning a February primary with 55% of the vote. Prosser, a former Republican state assemblyman, faced JoAnne Kloppenburg, who previously served as the state’s assistant attorney general and came in second in the primary. But Governor Scott Walker’s brazen push to bust unions and implement an ultraconservative political agenda spurred the progressive community into action, and Walker’s popularity plummeted.
Many of the Wisconsinites who are outraged over the right-wing policies pursued by Walker and the Republican-controlled legislature, rallied to Kloppenburg’s side. Walker allies feared the potential defeat of Prosser, who called himself “a common sense complement to both the new [Walker] administration and Legislature.”
While there are just a few hundred votes separating the two candidates, guaranteeing a recount, last-minute spending by right-wing organizations helped salvage Prosser’s flagging campaign.
According to the Brennan Center for Justice of New York University, which monitors spending in judicial elections, pro-corporate groups have greatly outspent progressive organizations. The Brennan Center found that spending in the race passed the $3.5 million mark, with most of the spending benefiting Prosser.
While the Greater Wisconsin Committee ran ads against Prosser’s reelection, pro-corporate organizations such as the Wisconsin Manufacturers and Commerce (an amalgamate of the Wisconsin State Chamber of Commerce and the Wisconsin Manufacturers Association), the Club for Growth, Citizens for a Strong America, and the Tea Party Express have flooded the state with ads supporting Prosser and berating Kloppenburg.
As of Monday, the four groups which backed Prosser spent a combined $2,177,220, but the Greater Wisconsin Committee spent $1,363,040. The final spending figures have not yet been tallied.
Citizens for a Strong America, a front group for the Koch Brothers-financed Americans for Prosperity, ran an ad so erroneous that the nonpartisan group PolitiFact gave it a “pants on fire” rating. Even the far-right Family Research Council added to the smear campaign, attacking Kloppenburg, who worked as assistant attorney general since 1989, as inexperienced in advertisements on thirty-four Wisconsin radio stations.
With a recount pending, Kloppenburg’s come-from-behind campaign shows the ability of progressives in states like Wisconsin to overcome the corporate juggernaut that is able to spend almost limitless amounts of money to support its favored candidates.
Wisconsin Republicans have escalated their assault on Democrats, liberals, unions, and anyone else who does not fall into line for their ideological agenda. This time, it is the right to criticize the Republican Party that is under attack, as the Cap Times reports:
The Wisconsin Republican Party, apparently stung by a blog post written by UW-Madison history professor William Cronon, has responded by asking the University of Wisconsin-Madison for copies of all of Cronon's office e-mails that mention prominent Republicans or public employee unions.
Cronon revealed the GOP's Freedom of Information Act request in his Scholar as Citizen blog post late Thursday evening along with a lengthy, and typically scholarly, defense.
In his inaugural blog post on March 15, Cronon, one of the UW's academic stars, had sketched the apparent influence of the American Legislative Exchange Council (ALEC), a shadow conservative policy group that works with Republican state legislators, on Gov. Scott Walker's legislative agenda. It was the first time the respected professor had used a blog format and he was, to put it mildly, surprised by the response. The blog generated more than half a million hits. For many of his readers, it was the first time they were aware of the organization and its involvement with conservative legislators around the country.
Billionaire brothers Charles and David Koch, major Walker campaign contributors, provide funding support for ALEC. ...
The Republican request, filed two days after Cronon's March 15 post appeared, asks for "Copies of all emails into and out of Prof. William Cronon's state email account from January 1, 2011 to present which reference any of the following terms: Republican, Scott Walker, recall, collective bargaining, AFSCME, WEAC, rally, union, Alberta Darling, Randy Hopper, Dan Kapanke, Rob Cowles, Scott Fitzgerald, Sheila Harsdorf, Luther Olsen, Glenn Grothman, Mary Lazich, Jeff Fitzgerald, Marty Beil, or Mary Bell."
The named individuals are the Republican governor, the Republican leaders of the state House and Senate, and the eight Republican senators targeted for recall.
Professor Cronon has written a long, must-read response to this political effort to intimidate him for daring to question the Republican Party.
In some ways, this is reminiscent of Attorney General Ken Cuccinelli's assault on academic freedom in Virginia. Academic freedom exists only in name if scholars questioning the Republican Party are bullied into not using it. In that sense, the Wisconsin assault against Professor Cronon is directly related to all the other ways that the modern-day GOP is actively undermining the infrastructure of our democracy, giving us:
In isolation, the incident in Wisconsin is terrible. But to see it only in isolation would be a grave mistake.
If the party officials involved with this are not condemned and banished from the party, this incident will do long-term damage. Continuing party support for those who undermine the foundations of our free society – as in the examples above – significantly lowers the bar for what departures from the principles of democracy are now acceptable.
This incident should be a rallying cry for Americans to protect the liberties and rights enshrined in the U.S. Constitution.
When will leaders in politics and the media stop believing right-wing smear artist James O’Keefe? Known for his “sting videos,” O’Keefe has been consistently discredited for his work against ACORN, CNN, a U.S. Senator, and now, NPR.
An analyst for The Blaze, a conservative website, found that the videos were heavily doctored and quoted the NPR executives out of context. Reflecting on the analysis, Politico’s Ben Smith said, “I regret having, even in what I thought was a cautious way, picked up the story”
This wasn’t the first time O’Keefe doctored videos, as he performed the same malicious editing in his “sting” of the civic group ACORN. A probe into the videos by California’s Attorney General found no criminal activity by ACORN employees and said O’Keefe’s videos reflect “highly selective editing of reality.” Later, O’Keefe was arrested and convicted for attempting to tamper with the phones of US Senator Mary Landrieu’s office and also was caught trying to humiliate a CNN reporter when one of his own coworkers called him out.
Currently, Republicans in Congress are trying to defund NPR and PBS, and leading Republicans quickly embraced O’Keefe’s undercover videos, which were deceptively edited to show NPR officials speaking critically of the Tea Party and conservatives.
US Senator Dick Durbin told the GOP to drop its plan to defund public broadcasting and stop using O’Keefe’s discredited videos as an excuse:
If the name James O' Keefe rings a bell with members of the United States Senate it should. Remember some of the other things he was caught doing?... Mr. O'Keefe is obviously not worried about breaking a law if he thinks he is going to come up with a sensational video. He was convicted in Louisiana as I mentioned earlier.
Not only should Republicans stop paying O’Keefe attention, but so should media personalities like Chris Wallace of Fox News who lauded the smear artist as “power player of the week.” But while O’Keefe may be able to win attention for himself, he continues to lose all credibility.
Speaking of officially-sanctioned Islamophobia, GOP Rep. Peter King is having a hard time finding Muslim Americans, or any experts at all, to testify in his planned hearings about the “radicalization” of American Muslims. According to the American Prospect’s Adam Serwer, the one witness that King has managed to nail down for the hearings—which are scheduled to start next week—is a man on the advisory board of a group that seeks to “educate” law enforcement officers in the field of stereotyping Muslims. Beyond that, King hasn’t had much luck finding Muslim Americans to jump on his anti-Islam bandwagon:
Now, King has already removed two witnesses from his hearings for being controversial. The first, AEI Scholar Ayaan Hirsi Ali, has suggested amending the U.S. Constitution to give fewer rights to Muslims. The other, Walid Phares, (who is also on the Clarion Fund advisory board) is a Lebanese Christian who was removed after CAIR accused him of ties to Christian militias implicated in civilian massacres in Lebanon.
These witnesses may have been "controversial," but I suspect part of the reason they were removed is that King may have not realized when he chose them that neither of them identify as Muslims. After the Investigative Project's Steve Emerson wrote King an angry letter saying he felt rejected by King's decision not to call him as a witness, King emphasized that "the lead witnesses would be Muslims who believe their community is being radicalized." Hirsi Ali was raised a Muslim but is an atheist, and Phares is a Christian.
As it stands, King has one witness, tied to the industry of Islamophobic distortion that is undermining the war of ideas against al-Qaeda by relaying misinformation to law enforcement. There just isn't a very deep bench of Muslims willing to testify before Congress that most Muslims are enemies of the state.
As PFAW’s Michael Keegan wrote last month, the problem with King’s proposed hearings is that they seem to be aimed not at dealing with the facts about domestic terrorism, but at further exploring falsehoods and misinformation that have lead to widespread resentment of American Muslims:
Rep. King, in his highly public hearings, intends to explore the "radicalization" of American Muslims and what he sees as a lack of cooperation between Muslim communities and law enforcement. Before he starts, King should look at what the experts say. The nation's top law enforcement official, U.S. Attorney General Eric Holder, recently said that "the cooperation of Muslim and Arab-American communities has been absolutely essential in identifying, and preventing, terrorist threats."
The actions of a handful of violent extremists don't represent the beliefs of an entire faith community. In fact, National Counterterrorism Center Director Michael Leiter, in earlier testimony before Rep. King and the Homeland Security Committee, said that the prevalence of violent extremists in American Muslim communities was "tiny…a minute percentage of the [U.S. Muslim] population."
Local law enforcement officials agree. This month, Los Angeles County Sheriff Lee Baca, who oversees one of the largest law enforcement operations in the country, in one of the nation's largest American Muslim population centers, said he hadn't seen any evidence of the lack of cooperation that King claims exists: "Muslim Americans in the county of Los Angeles have been overwhelmingly astounded by terrorist attacks--like everyone else--and overwhelmingly concerned about a non-repeat performance of that kind, and are willing to get involved and help."
It’s no wonder that King has been forced to rely on extremists, not experts, to argue his case.
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
Attorney General Eric Holder has announced that the Department of Justice will no longer defend Section 3 of the Defense of Marriage Act in court because it is unconstitutional. This is the provision prohibiting federal recognition of the marriages of gay or lesbian couples. As if that wasn't big enough news by itself, DoJ has concluded that legal classifications based on sexual orientation, like those based on race, sex, national origin, and religion, should be subject to a higher level of judicial scrutiny.
While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision. In particular, in November 2010, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.
These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.
This is the first recognition by the United States government that gays and lesbians have suffered a long history of discrimination so bad that it makes suspect any laws that treat people differently based on sexual orientation. Moreover, that discrimination continues today and limits their political influence.
[T]he adoption of laws like those at issue in Romer v. Evans [prohibiting the state from passing civil rights protections for gay people] and Lawrence [laws making their private sexual conduct a crime], the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and "ability to attract the [favorable] attention of the lawmakers." Cleburne, 473 U.S. at 445. And while the enactment of the Matthew Shepard Act and pending repeal of Don't Ask, Don't Tell indicate that the political process is not closed entirely to gay and lesbian people, that is not the standard by which the Court has judged "political powerlessness." Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).
The Attorney General's announcement notes that it will continue to enforce DOMA until it is repealed by Congress or struck down definitively by the courts. In addition, it will work to ensure that Congress, should it wish, has the opportunity to defend the law in court since the Administration cannot in good conscience do so. (This would presumably avoid a situation like the one in California, where the state refused to pursue an appeal of the district court ruling against Proposition 8, leaving in doubt whether anyone has standing to do so.)
Supreme Court Justices Antonin Scalia and Clarence Thomas raised eyebrows and ethics questions late last year when they attended a conference sponsored by Charles and David Koch, the billionaire brothers who head Koch Industries. A comprehensive expose from The New Yorker reported on the Koch Brother’s immense financial and ideological ties to right-wing and pro-corporate groups, and the Koch-sponsored event that Scalia and Thomas attended was held “to review strategies for combating the multitude of public policies that threaten to destroy America as we know it.” The Koch Brothers have greatly benefited from the Supreme Court’s pro-corporate rulings, including the Citizens United decision which allowed corporations to use funds from their general treasuries to finance, sometimes secretly, political organizations. Tomorrow is the first anniversary of Citizens United, and Common Cause is requesting that the Justice Department look into whether Justices Scalia and Thomas should have recused themselves from the case:
The government reform advocacy group Common Cause today asked the Justice Department to investigate whether Supreme Court Justices Clarence Thomas and Antonin Scalia should have recused themselves from the landmark Citizens United vs. Federal Election Commission decision because they were involved with an array of conservative groups that stood to benefit from it.
In the case, the Supreme Court by a 5-4 margin struck down a provision of the McCain-Feingold campaign finance act that prevented corporations and unions from spending an unlimited amount of money on electioneering, such as campaign ads. Scalia and Thomas sided with the majority in the decision, which was made a year ago this week.
In a letter addressed to Attorney General Eric Holder, Common Cause President Bob Edgar said both justices should have been disqualified from hearing the case because of their ties to Charles and David Koch, wealthy brothers who fund an array of conservative causes.
The justices both attended “retreats” held by Koch Industries, Edgar said, that focused on championing conservative ideas including opposition to campaign finance laws.
Their attendance raises the question of whether the two judges were impartial in their decision, Edgar said. He also questioned Thomas's impartiality because his wife, Ginny, ran a nonprofit group that Edgar said benefited greatly from the Citizens United decision.
“Until these questions are resolved, public debate over the allegations of bias and conflicts of interest will serve to undermine the legitimacy of the Citizens United decision,” Edgar said.