Civil Rights

What Hobby Lobby Shows Us About the Supreme Court and Civil Rights Laws: Winners and Losers in the Roberts Court

This post was originally published at the Huffington Post.

In its recent decision in Hobby Lobby, the conservative 5-4 majority -- Chief Justice Roberts and Justices Alito, Scalia, Thomas, and Kennedy -- did something that may appear very unusual. In divided cases, these five justices have the reputation for interpreting very narrowly laws passed by Congress to protect civil rights. So why did they interpret so broadly the Religious Freedom Restoration Act (RFRA), a law passed by Congress to protect the important civil right of religious freedom? The answer, unfortunately, is all too clear. Comparing Hobby Lobby with the two rulings in civil rights law cases issued by the Court over the last year, the key factor that explains how the conservative majority ruled is not precedent, the language of the statute, or congressional intent, but who wins and who loses.

Let's start with last year's rulings, both of which concerned Title VII of the 1964 Civil Rights Act which bans employment discrimination. In University of Texas Southwestern Medical Center v. Nassar, the majority ruled very narrowly in interpreting Title VII, deciding that the only way that employees can prevail on a claim that they have been fired in retaliation for raising job bias claims is to prove that they would not have been discharged "but for" the retaliatory motive. This was despite the fact that in order to strengthen Title VII, Congress added language to the law in 1991 to make clear that plaintiffs should prevail if they show that discrimination was a "motivating factor" in a job decision. As Justice Ginsburg explained in dissecting Justice Alito's attempt for the majority to draw a distinction between retaliation and other claims under Title VII, the net effect of the majority's ruling was to make it harder to prove a Title VII retaliation claim than before the 1991 law and with respect to other civil rights statutes that don't explicitly mention retaliation. The 5-4 majority had "seized on a provision adopted by Congress as part of an endeavor to strengthen Title VII," she concluded, "and turned it into a measure reducing the force of the ban on retaliation."

In Nassar, in ruling against a doctor of Middle Eastern descent in a case also involving egregious ethnic and national origin discrimination, Alito disregarded clear legislative history and language showing Congress' broad intent, as well as the interpretation of the law by the Equal Employment Opportunity Commission (EEOC). Interestingly, towards the end of his opinion, Alito appeared to reveal a key consideration behind the majority's decision. The ruling was important, he explained, to "the fair and responsible allocation of resources in the judicial and litigation systems." After all, he pointed out, retaliation claims "are being made with ever-increasing frequency," although he did not even consider how many have been proven meritorious. Agreeing with the EEOC and the plaintiff on the "motivating factor" standard, he wrote instead, "could also contribute to the filing of frivolous claims." As Justice Ginsburg put it, the majority "appears driven by zeal to reduce the number of retaliation claims against employers."

The other 2013 Title VII ruling also reflected an extremely narrow reading of the law. Vance v. Ball State University concerned a complaint by an African-American woman that she had been subjected to racial harassment and a racially hostile work environment. Under prior Title VII Court rulings agreed to by both conservative and moderate justices, the employer itself is often liable for such harassment claims when the harassment is committed by an employee's supervisor. But in Vance, in an opinion by Justice Alito, the familiar 5-4 Court majority significantly narrowed Title VII. It ruled that such vicarious employer liability applies only when the harassment is committed by a manager who can fire or reduce the pay or grade of the victim, not when it is committed by a manager who does not have that power but does control the day-to-day schedules, assignments, and working environment of the victim.

As Justice Ginsburg explained in dissent, the majority's holding again contradicted guidance issued by the EEOC as well as Congress' broad purpose to eliminate workplace discrimination. In fact, she pointed out, not even the university defendant in Vance itself "has advanced the restrictive definition the Court adopts." But again, Alito's opinion betrayed part of the majority's true motives. Its narrow interpretation would be "workable" and "readily applied," Alito explained. And it would promote "the limitation of employer liability in certain circumstances."

Something very different happened in the next Supreme Court case interpreting a Congressional civil rights statute: 2014's Burwell v. Hobby Lobby.

In that case, the same 5-4 majority that narrowly interpreted Title VII in Vance and Nassar adopted a very broad interpretation of the Religious Freedom Restoration Act (RFRA). All nine justices agreed that RFRA was enacted by Congress in response to the Supreme Court decision in Employment Division v. Smith, which restricted the protection of religious liberty by the Court under the First Amendment. But the 5-4 majority in Hobby Lobby ruled that RFRA provides "very broad protection for religious liberty" - "even broader protection than was available" under the First Amendment in pre-Smith decisions. As Justice Ginsburg put it in dissent, the majority interpreted RFRA "as a bold initiative departing from, rather than restoring, pre-Smith jurisprudence." She explained further that this broad interpretation contradicted the language of the statute, its legislative history, and a statement by the Court in a unanimous ruling in 2006 that in RFRA, Congress "adopt[ed] a statutory rule comparable to the constitutional rule rejected in Smith."

This difference in statutory interpretation was critical to the majority's ruling in Hobby Lobby -- that for-profit corporations whose owners had religious objections to contraceptives could invoke RFRA to refuse to obey the Affordable Care Act's mandate that they provide their employees with health plans under which contraceptives are available to female employees. As Justice Ginsburg explained, no previous Court decision under RFRA or the First Amendment had ever "recognized a for-profit corporation's qualification for a religious exemption" and such a ruling "surely is not grounded in the pre-Smith precedent Congress sought to preserve." The 5-4 majority's broad interpretation that RFRA applies to for-profit corporations like Hobby Lobby was obviously crucial to its holding.

In addition, however, the 5-4 majority went beyond pre-Smith case law in another crucial respect. Before a person can claim an exemption from a generally applicable law under RFRA, he or she must prove that the law "substantially burden[s] a person's exercise of religion." According to the majority, the corporations in Hobby Lobby met that standard by demonstrating that the use of certain contraceptives that could be purchased by their employees under their health plans would seriously offend the deeply held religious beliefs of their owners. As Justice Ginsburg explained, however, that ruling conflicted with pre-Smith case law on what must be shown to prove a "substantial burden." In several pre-Smith cases, the Court had ruled that there was no "substantial burden" created by, for example, the government's use of a social security number to administer benefit programs or its requirement that social security taxes be paid, despite the genuine and sincere offense that these actions caused to some religious beliefs. As Justice Ginsburg stated, such religious "beliefs, however deeply held, do not suffice to sustain a RFRA claim," except under the extremely broad interpretation of RFRA by the 5-4 Court majority.

As in the Title VII cases, Justice Alito's opinion for the 5-4 majority in Hobby Lobby was revealing about some of the majority's underlying concerns. In explaining the majority's decision to interpret RFRA as applying to for-profit corporations, Justice Alito noted that "[w]hen rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people" - in this case "the humans who own and control those companies" in the Hobby Lobby case. As Justice Ginsburg observed, the 5-4 majority paid little attention to the Court's pronouncement in a pre-Smith case that permitting a religious exemption to a general law for a corporation would "operate[e] to impose the employer's religious faith on the employees" of the corporation.

Even though the Supreme Court's 2013-14 rulings that interpreted civil rights laws passed by Congress may seem different, a common theme animates them all. Whether the 5-4 majority interpreted the statutes broadly or narrowly, the losers in all of them were women, minorities, and working people, and the winners were employers and corporations. In the majority's own words, the result is the "limitation of employer liability" under laws like Title VII designed to protect workers and the "protecting" of the "humans who own and control" corporations under RFRA.

Since all these rulings interpret Congressional statutes, not the Constitution, Congress clearly has the authority to reverse them. In fact, Congress has done exactly that with respect to other 5-4 rulings by the Court that misinterpreted civil rights statutes to harm women and minority workers and benefit their corporate employers. As recently as 2009, the Lily Ledbetter Fair Pay Act reversed a flawed 5-4 ruling that severely restricted workers' ability to file equal pay claims under Title VII. Congress is already considering legislation to reverse many of the effects of Hobby Lobby, a corrective effort that Senate Republicans have blocked by a filibuster to prevent the full Senate from even considering it. In our currently divided Congress, immediate prospects for the passage of such remedial legislation may not appear promising. But it is important to recognize the current 5-4 majority's pattern of favoring corporations and harming workers in its decisions interpreting federal civil rights laws, and to recognize and act on the ability to reverse these harmful rulings.

PFAW Foundation

Contempt for the Constitution Shows in Opposition to Adegbile

Today's shameful demagoguery against Debo Adegbile slights the constitutional protections that keep us free.
PFAW

PFAW Members Join Largest Civil Rights March in the South Since Selma

People from all walks of life marched together - from students and activists to lawyers, healthcare professionals, and teachers.
PFAW

PFAW Foundation Remembers Civil Rights Hero Julius Chambers

We here at People For the American Way Foundation are deeply saddened by the passing of Julius Chambers, a trailblazing civil rights lawyer and former People For the American Way Foundation board member.  In the 1960s, Chambers opened what became the first integrated law firm in North Carolina and later went on to lead the NAACP Legal Defense & Educational Fund.  Throughout his life, he fought and won cases on school desegregation and discrimination, including a case on public school integration – Swann v. Charlotte-Mecklenburg Board of Education– that went all the way to the Supreme Court and paved the way for the use of busing to counter segregation. 

But as the New York Times noted yesterday:

Mr. Chambers’s victories came with a cost. In the wake of the Supreme Court’s decision in Swann, his offices were firebombed. After his successes in 1965, his car was firebombed and two bombs exploded in his home.

His response was defiant; he said he would “keep fighting.”

More than forty years later, during a 2008 PFAW Foundation panel on the future of the Supreme Court, Chambers made it clear that he was still fighting.  He underscored his commitment to “us[ing] the courts to correct the injustices that we see still perpetuated today,” including discrimination against low-income people.

It is not difficult to see why the North Carolina NAACP chapter described Chambers as “a man of tremendous courage.” 
 

PFAW Foundation

Sen. Inouye’s Civil Rights Legacy

Sen. Daniel Inouye of Hawaii, President Pro Tempore of the Senate, passed away yesterday at the age of 88, having represented the people of Hawaii in either the House or Senate as long as it has been a state. Inouye was elected to the Senate nine times, serving nearly 50 years. Taking office the year before the passage of the Civil Rights Act of 1964, Inouye was a leader in half a century of civil rights battles in the Senate. John Nichols of The Nation details Inouye’s role in some of those battles:

The last sitting senator who joined the epic struggles to pass the Civil Rights Act and the Voting Rights Act, he led the fight for the Americans with Disabilities Act and was a key sponsor of the constitutional amendment to extend voting rights to 18-to-20-year-olds.

Inouye battled for reparations for Japanese-Americans who were interned in government compounds during World War II. And he was a passionate defender of the right to dissent. Indeed, the ACLU recalls, “Senator Inouye fought every iteration of proposed constitutional amendments to ban flag desecration—support that was particularly meaningful to the defense of free speech because of his military service.”

Inouye was one of the handful of senators who rejected the discriminatory Defense of Marriage Act in the 1990s and he emerged as one of the earliest and most determined backers of marriage equality in the Senate, asking: “How can we call ourselves the land of the free, if we do not permit people who love one another to get married?”

When the debate over whether gays and lesbians serving in the military arose, Inouye declared as a Congressional Medal of Honor recipient: “In every war we have had men and women of different sexual orientation who have stood in harm’s way and given their lives for their country. I fought alongside gay men during World War II, many of them were killed in combat. Are we to suggest that because of their sexual orientation they are not heroes?”

Sen. Inouye represented the best of American values. This country will miss him.

 

PFAW

NYT: The Courts as a Political Weapon for the Powerful

As Mitt Romney rightly pointed out in December, one of the most important issues riding on the upcoming presidential election will be the future of the federal courts.


Yet, if 2012 is like other election years, the courts will be discussed relatively little by the candidates. That would be a big mistake. Romney has already signaled to the Republican base that he will move the federal courts even farther right than they already are. He named Robert Bork, the judge whose legal views were so extreme his Supreme Court nomination was rejected by the Senate, to lead his “Justice Advisory Committee,” and has said he would seek to nominate judges like those who have made the current Supreme Court the most conservative in decades.


In an editorial this weekend, the New York Times explained how politics has reshaped the courts and the law under the past three Republican administrations. Courts picked by Mitt Romney and Robert Bork would be no exception:


Each party has its program and works to turn it into law. The great example of political change through legal change was the long, methodical effort to whittle away at segregation from within the legal mainstream that culminated in the court’s decision in Brown v. Board of Education. The conservatives’ legal-political strategy draws from Brown, but it is also vastly different in nature and design.


The struggle for school desegregation was waged by and on behalf of oppressed minority groups seeking to make good on the Constitution’s promise of equal rights. They faced strong opposition from the most powerful people in our society, in courts that were not necessarily sympathetic or overtly hostile to their cause. And they fought a long, incremental campaign.


When Lewis Powell Jr. energized conservatives by writing in 1971 that “the judiciary may be the most important instrument for social, economic and political change,” he was himself an incrementalist and expected others to be.


But the conservative legal battles of our modern times are being waged by the most powerful, often against the weak and oppressed. They began with a carefully planned and successful effort to reshape the courts to be sympathetic to conservative causes. They are largely aimed at narrowing rights, not expanding them — except where property and guns are concerned. And beginning with the Reagan administration, conservatives became impatient with the pace of change brought about from within the mainstream. They sought to remake law into a weapon of aggressive action.
 

PFAW

Revisionist History & 'The Food Stamp President': Celebrating MLK Day with the GOP Candidates

This post originally appeared in the Huffington Post.

The GOP presidential candidates had every right to hold a debate in South Carolina on Martin Luther King Day, Jr. Day this week, but maybe, out of a sense of self-preservation, they should have thought twice about the timing. What could have been an opportunity for the candidates to express their support for the myriad advances of the Civil Rights movement and to address the real challenges that remain instead turned into a mess of racially-charged attacks on African Americans, immigrants and the poor.

he fact that the disgraceful show took place on a day dedicated to celebrating the Civil Rights movement threw into sharp relief the narrow cultural corner into which the GOP has painted itself.

The trouble for the GOP's civil rights celebrations started early in the day. Mitt Romney spent the day campaigning in South Carolina with Kris Kobach , the prominent anti-immigrant activist who, after a stint at a nativist hate group, so-called "FAIR", helped write draconian anti-immigrant laws in Arizona and Alabama. Romney has praised Kobach's record, calling him "a true leader on securing our borders and stopping the flow of illegal immigration into this country." (Romney's choice of company should perhaps come as no surprise. Another prominent endorser who now heads the candidate's legal policy team, former Judge Robert Bork, has said the Civil Rights Act was built on "a principle of unsurpassed ugliness.")

Meanwhile, the leaders of the South Carolina GOP, including Gov. Nikki Haley, had lunch with right-wing pseudo-historian David Barton , who "led the crowd through a timeline demonstrating the role Democrats of the day played in perpetuating the existence of slavery in the United States." Telling a selective history of American racism is something of a specialty for Barton, a former Texas GOP operative. In his video "Setting the Record Straight: American History in Black & White," Barton attempts to tie the modern Democratic party to slavery, lynching and the Ku Klux Klan - while conveniently ignoring the GOP's "southern strategy" and the party realignment spurred by the Civil Rights movement, which led to many of the Democrats that he referred to becoming Republican. One can only imagine the dubious history lesson the governor and her allies were treated to before moving on to watch the night's debate.

But the GOP's offensive daytime holiday activities could not match the evening's event. Texas Gov. Rick Perry started things off by dusting off the racially charged rhetoric of the segregated south to attack the Voting Rights Act . Under the act, the Justice Department has the power to review voting law changes in states with a history of disenfranchising minorities. Perry called the DOJ's review of Texas' voter ID law an "assault" and said the rejection of a similar law in South Carolina, the home of Fort Sumter, had led the state to be "at war with the federal government." He was met with loud cheers from the audience and a big smile from Gov. Haley.

Never to be outdone, former House speaker Newt Gingrich stepped up the attack on African Americans. Asked by moderator Juan Williams about his previous dubbing of President Obama as the "food stamp president" and his insistence that he would "talk about why the African American community should demand paychecks and not be satisfied with food stamps," Gingrich dug in his heels , to the delight of the audience. "Can't you see that this is viewed, at a minimum as insulting to all Americans, but particularly to black Americans?" asked Williams. "No, I don't see that," Gingrich replied, to roaring applause, before repeating his call for low-income children to be put to work as janitors in their schools.

And those were just the lowlights. Romney, in response to a trick question from Rick Santorum, declared his opposition to extending voting rights to convicted felons, an issue that disproportionately affects the African American community. Later, he repeated his promise to veto the DREAM Act, which would allow the children of undocumented immigrants to build meaningful lives in the United States.

I can't presume to know what Dr. King would think of the way the GOP presidential candidates celebrated his birthday, but I can't imagine he would have enjoyed the party. Almost fifty years after the March on Washington, the leaders of a major political party are trying to curb voting rights, drinking in revisionist American history, and shamelessly exploiting racial tensions for political gain.

Martin Luther King Day isn't just a celebration of the great strides made by a previous generation -- it's a call to action for those who want to preserve and protect the values that Dr. King preached. The spectacle in South Carolina was a powerful reminder that despite how far we have come, we have a long way to go to realize Dr. King's dream.

PFAW

Justice Department Charges Anti-Immigrant Hero Joe Arpaio with Long List of Civil Rights Violations

Sheriff Joe Arpaio is something of a hero to the anti-immigrant Right. He was one of the most outspoken proponents of Arizona’s draconian anti-immigrant law last year, in a large part because he had already been using the racial profiling tactics it authorized for years. He delighted in punishing prisoners –including protestors of his tactics – by making them wear pink underwear, a practice he commemorated last month by giving Sarah Palin her very own pair. He briefly had his own reality TV show. He was courted by the Tea Party. GOP presidential candidates, including Michele Bachmann and Herman Cain vied for his endorsement, which he ultimately gave to Rick Perry before joining the candidate on the campaign trail.

Arpaio’s reckless flair for self-promotion and disregard for civil rights have been well-known for as long as he has had national fame. But today, the Justice Department released a long and scathing report detailing the Sheriff’s record of civil rights violations, including his discrimination against Latinos and non-English speakers, “excessive use of force” and “unlawful retaliation against individuals exercising their First Amendment right to criticize MCSO’s policies or practices.”

The AP outlines some of the most shocking allegations in the report:


The civil rights report said Latinos are four to nine times more likely to be stopped in traffic stops in Maricopa County than non-Latinos and that the agency's immigration policies treat Latinos as if they are all in the country illegally. Deputies on the immigrant-smuggling squad stop and arrest Latino drivers without good cause, the investigation found.

A review done as part of the investigation found that 20 percent of traffic reports handled by Arpaio's immigrant-smuggling squad from March 2006 to March 2009 were stops - almost all involving Latino drivers - that were done without reasonable suspicion. The squad's stops rarely led to smuggling arrests.

Deputies are encouraged to make high-volume traffic stops in targeted locations. There were Latinos who were in the U.S. legally who were arrested or detained without cause during the sweeps, according to the report.

During the sweeps, deputies flood an area of a city - in some cases, heavily Latino areas - over several days to seek out traffic violators and arrest other offenders. Illegal immigrants accounted for 57 percent of the 1,500 people arrested in the 20 sweeps conducted by his office since January 2008, according to figures provided by Arpaio's office.

Police supervisors, including at least one smuggling-squad supervisor, often used county accounts to send emails that demeaned Latinos to fellow sheriff's managers, deputies and volunteers in the sheriff's posse. One such email had a photo of a mock driver's license for a fictional state called "Mexifornia."


The report said that the sheriff's office launched an immigration operation two weeks after the sheriff received a letter in August 2009 letter about a person's dismay over employees of a McDonald's in the Phoenix suburb of Sun City who didn't speak English. The tip laid out no criminal allegations. The sheriff wrote back to thank the writer "for the info," said he would look into it and forwarded it to a top aide with a note of "for our operation."
 

Federal investigators focused heavily on the language barriers in Arpaio's jails.

Latino inmates with limited English skills were punished for failing to understand commands in English by being put in solitary confinement for up to 23 hours a day or keeping prisoners locked down in their jail pods for as long as 72 hours without a trip to the canteen area or making nonlegal phone calls.

The report said some jail officers used racial slurs for Latinos when talking among themselves and speaking to inmates.

Detention officers refused to accept forms requesting basic daily services and reporting mistreatment when the documents were completed in Spanish and pressured Latinos with limited English skills to sign forms that implicate their legal rights without language assistance.

The agency pressures Latinos with limited English skills to sign forms by yelling at them and keeping them in uncomfortably cold cells for long periods of time.

These allegations are disturbing enough in themselves. But what’s even more troubling is that the person behind them has been not only held up as a hero by the Right, but has served as an inspiration for immigration legislation around the country. In a report last year, we examined the ways the anti-immigrant Right has worked to dehumanize immigrants in order “to inflame anti-immigrant sentiment and build political opposition to comprehensive immigration reform.” It should come as no surprise that Sheriff Joe is the movement’s figurehead.
 

PFAW

The Commerce Clause and American Progress

In the Tea Party, it’s all the rage these days to declare everything unconstitutional – Social Security, Medicare, unemployment insurance, disaster relief, federal civil rights laws, health care reform, basically any law that enables the federal government to take on national-scale problems.

One of the main strategies that the Tea Party has been using to push this extreme and regressive view of the Constitution is pushing aside the Commerce Clause, the clause in the Constitution that gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”

The Commerce Clause, long recognized by courts as the rationale for important progressive economic programs, has come under fire from opponents of health care reform, who are arguing in the courts – with mixed success -- that the clause does not allow the Affordable Care Act’s individual health insurance mandate.

In a new report, People For the American Way Foundation Senior Fellow Jamie Raskin argues that “a powerful case can be made “that the Commerce Clause is “the most important constitutional instrument for social progress in our history.”

Without it, Congress could not have passed the National Labor Relations Act, the Fair Labor Standards Act, the Clayton and Sherman Anti-Trust Acts, the Civil Rights Act of 1964’s prohibition of race discrimination in hotels, restaurants and other places of public accommodation, the Occupational Safety and Health Act, the Equal Pay Act, the Clean Air Act, the Clean Water Act and dozens of other federal statutes protecting the environment and establishing the rights of citizens in the workplace and the marketplace.


Why, then, does the Commerce Clause seem pale and dull next to the Free Speech and Equal Protection Clauses?
Perhaps it is because these provisions clearly declare radiant principles of liberty and equality that translate into easily understood and intuitively attractive protections against arbitrary government power.

Because the Commerce Clause has been a powerful instrument of social reform over the last century, its meaning has periodically provoked deep jurisprudential controversy. This is ironic since the Court routinely and unanimously upheld congressional assertion of a comprehensive federal commerce power before broad democratic purposes entered the picture. The commerce power became the target of virulent attack by corporate conservatives when progressives and labor gained political influence and used this power as the constitutional basis upon which to regulate and improve the character, terms and conditions of the American workplace and marketplace in favor of large numbers of the American people.


Raskin follows the Commerce Clause from its origins at the Constitutional Convention, through the Lochner era, when an activist court “put the Commerce Clause in a straightjacket” to strike down federal worker protection laws and other attempts to regulate interstate commerce, to the late 1930s, when the court returned to a more expansive view of the clause, allowing progressive economic programs and civil rights reforms to flourish, to the Rehnquist Court, which again began to narrow down the scope of Congress’s constitutional regulatory power, to challenges to the Affordable Care Act, which threaten to take us back to the Lochner era.
 

You can read the full report here.

PFAW

Saving the Constitution From the Tea Party

What if our federal government didn’t have the power to provide for emergency disaster relief? To prevent children from being put to work at an early age…without even the protection of a minimum wage? To prohibit discrimination in employment, public accommodations, and public schools? To help struggling states fund public education?

These are the logical ends of the radical, regressive vision of the Constitution that has become popular among the Tea Party -- and that for the first time is enjoying serious consideration in the halls of Congress and in federal court rooms.

The Center For American Progress’s Ian Millhiser released a paper today outlining some of the ways the Tea Party’s selective worship of parts of the Constitution threatens to derail the success of the hard-won protections contained in the whole Constitution. Millhiser brainstorms a list of some of the things that would be unconstitutional under the Tea Party’s Constitution:

  • Social Security and Medicare
  • Medicaid, children's health insurance, and other health care programs
  • All federal education programs
  • All federal antipoverty programs
  • Federal disaster relief
  • Federal food safety inspections and other food safety programs
  • Child labor laws, the minimum wage, overtime, and other labor protections
  • Federal civil rights laws

 

You can add to that the basic definition of citizenship and the concept of separation of church and state. And that doesn’t even include the progressive amendments to the Constitution that Tea Party activists want to roll back, such as the amendment providing for the direct election of U.S. senators.

PFAW examined the Tea Party’s dangerous cherry-picked Constitution in a report last year, Corporate Infusion: What the Tea Party’s Really Serving America , which demonstrates that the Tea Party’s supposed allegiance to the Constitution deliberately ignores the text and history of the original document and the progressive amendments that have extended its freedoms to more and more Americans.

Earlier this week, PFAW Foundation, CAP and the Constitutional Accountability Center launched an effort called “Constitutional Progressives,” aimed at protecting and defending the whole Constitution – it’s its text, history and more than 200 years of amendments. You can sign a pledge to support the whole Constitution at constitutionalprogressives.org.

 

PFAW

Hit With Ethics Complaint, Issa Turns to the Usual Scapegoat

The advocacy group American Family Voices is planning to file an ethics complaint against House Oversight & Government Reform Committee chairman Darrel Issa for improperly using his position to add to his multimillion dollar personal fortune, according to a report by The Hill.

Issa’s tenure as chair of the committee has been rife with examples of politically-charged investigations (or lack of investigations), so it’s not surprising that Issa’s office would immediately try to pass off these legitimate ethics inquiries as a White House set-up. Just as he called the New York Time’s lengthy inquiry into the overlap between his private financial interests and his public actions “a hit piece,” Issa’s spokesperson insists that this complaint is also without merit because “the White House has used an assortment of outside progressive groups in an effort to attack Oversight and Chairman Issa directly. This is just their latest salvo in an ongoing effort to obstruct oversight.”

While the White House and Rep. Issa may be politically at odds, the White House certainly didn’t direct the SEC to stop investigating Goldman Sachs (Issa did; he simultaneously bought $600,000 worth of Goldman Sachs bonds). The President didn’t push for a merger between Sirius and XM satellite radio companies (Issa did; he has a financial interest in Sirius through his holding company DEI).

Until Issa can explain how the White House is forcing him to favor corporations in which he has a financial interest, his complaints won’t carry a lot of water. More likely, this ethics inquiry will reveal that the Congressman might not always prioritize fair and effective oversight.

PFAW

Mitt Romney Brings Back Bush’s Economics and Bork’s Jurisprudence

When Mitt Romney announced last month that his campaign’s legal team would be led by rejected Supreme Court nominee Robert Bork, we were somewhat aghast. Bork’s legal record was so extreme – he opposed the Civil Rights Act and the right to birth control, for instance – that his 1987 Supreme Court nomination was rejected by the Senate. And his views have hardly tempered since then – a 2002 PFAW report checked back in on Bork’s crusades against pop culture, freedom of expression and gay rights.

But Robert Bork isn’t the only blast from the past who Romney has brought in to help develop his policies. Today, the former Massachusetts governor announced his economic team – which unsurprisingly includes two prominent economic advisors to George W. Bush, including one of the primary architects of the disastrous 2003 Bush tax cuts.

Two of the four members of Romney’s econ team are former Bush advisers – R. Glenn Hubbard, who was the chairman of the Council of Economic Advisers from 2001 to 2003, and N. Gregory Mankiw, who took over from 2003 to 2005. Hubbard helped devise the tax cuts for the wealthy that were the largest contributor to the ballooning budget deficit under Bush, and which Republicans in Congress still refuse to roll back. Mankiw helped Bush with his plan to privatize Social Security and praised the benefits of outsourcing labor.

Mitt Romney is getting something of a free pass in the current GOP field, but his choice of advisors shows just how extreme he really is. The last thing we need is more economic policies like Bush’s or judges like Bork, but under Romney it seems that’s exactly what we’d get.
 

PFAW

For Rick Perry, Fighting "Over-Taxation" Is A Testament Of Faith

Cross-posted on Right Wing Watch

Texas Gov. Rick Perry raised eyebrows yesterday when, while campaigning in South Carolina, he likened the struggles of corporations resisting paying their fair share in taxes to the civil rights movement. When told that he was visiting a town where civil rights advocates held a sit-in fifty years ago, Perry mused that the corporate fight against taxes and regulation is an extension of the civil rights movement: “I mean we’ve gone from a country that made great strides in issues of civil rights,” Perry said, “And as we go forward, America needs to be about freedom. It needs to be about freedom from over-taxation, freedom from over-litigation, freedom from over-regulation.”

Immediately, critics rightfully questioned how the fight against “over-taxation” and “over-regulation” could be seen as an outgrowth of a movement that fought for social and economic justice.

But it is important to remember that Perry’s fight for lower taxes and regulations for corporations (on the backs of low-income families) is not just an economic position but also a spiritual issue. Before his Response prayer rally earlier this month, Perry told The 700 Club that he would be praying to end “government’s over-taxed, over-regulated, over-litigated” policies that have “caused roadblocks to economic prosperity.”

In an interview with televangelist James Robison in May, Perry claimed that the current economic crisis was God’s way of ending our “slavery” to government. Like civil rights leaders who used the story of Exodus in their struggle against discrimination, Perry contended that “Pharaoh” exists today in the form of government and “we’ve become slaves to government”:

PFAW

Koch Brothers Sink to a New Low to Undermine Public Education

The Koch brothers have had a piece of the right-wing anti-public education franchise for some time, through their sponsorship of the American Legislative Exchange Council (ALEC). The corporate-funded think tank has churned out all sorts of model legislation for right-wing state legislators aimed at undermining and defunding public education.

Now, through the Koch-created and funded Americans for Prosperity (AFP), the Koch brothers have taken their attacks on public education to a new level: attempting to reinstitute school segregation.

A brand new video from our friends at Brave New Foundation -- a part of their "Koch Brothers Exposed" series -- details the disturbing rise of racial resegregation in one award-winning North Carolina school district. The story goes like this: AFP supported a slate of right-wing school board candidates who ran on a platform that echoed those of 1960's southern segregationists like George Wallace almost verbatim ... they won, and now they are using their power to hurt the public school system by not only erasing the district's commendable achievements of diversity, but hurting the quality of public education received by all the district's students.

People For the American Way and PFAW's African American Ministers in Action (AAMIA) program are both incredibly proud to cosponsor the release of this video, and we're hopeful that we can help shine a light on this latest right-wing attack on public education, racial equality and civil rights.

Watch the video, and help spread the word by sharing this post.

After you watch the video, please call David Koch at his Manhattan office at 212-319-1100 and tell him to "stop funding school resegregation now."

PFAW

Taking it Back to 1987, Mitt Romney Teams Up with Judge Bork

Mitt Romney yesterday announced the members of his campaign’s legal advisory team, which will be led by none other than Robert Bork.

This is interesting because Judge Bork’s views of the law and Constitution were so extreme that his 1987 Supreme Court nomination was rejected by the Senate.

Here’s the TV spot People For the American Way aired about Bork at the time:

Among the reasons PFAW, the United States Senate, and the American people concluded that Bork was not suitable for a seat on the nation’s highest court:

  • Bork rejected the idea of a constitutional right to privacy – the basis for our freedom to use contraception, choose whether to have an abortion, and engage in private consensual sexual activity – putting him far to the right of most sitting Supreme Court justices.
  • He regularly interpreted the law to favor the powerful, to the particular detriment of women and people of color, including opposing the Civil Rights Act and claiming that the Equal Protection Clause does not apply to women.

As another Massachusetts political leader, Sen. Edward Kennedy famously put it:

Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.

America is a better and freer nation than Robert Bork thinks.

And in the years after his failed Supreme Court nomination, Bork kept on reminding us of why he would have been a disastrous Supreme Court Justice. From a 2002 PFAW report:

Robert Bork has carved out a niche for himself as an acerbic commentator on the Supreme Court, as well as various cultural issues. In fact, to Bork the two topics are closely related and the Supreme Court’s “illegitimacy” and its departure from the Constitution are in many ways responsible for our growing “cultural depravity.”

According to Bork, we are rapidly becoming a fragmented society that has totally lost its nerve and is now either unwilling or unable “to suppress public obscenity, punish crime, reform welfare, attach stigma to the bearing of illegitimate children, resist the demands of self-proclaimed victim groups for preferential treatment, or maintain standards of reason and scholarship.” Abortion, technology, affluence, hedonism, and modern liberalism are gradually ruining our culture and everywhere you look “the rot is spreading.”

Bork has denounced the public education system that “all too often teaches moral relativism and depravity.” He considers sensitivity training to be little more than “America’s version of Maoist re-education camps.” He has shared his fear that recognition of gay marriage would lead to accommodation of “man-boy associations, polygamists and so forth.” And he has criticized the feminist movement for “intimidat[ing] officials in ways that are destructive of family, hostile to masculinity, damaging to the military and disastrous for much education.”

It appears as if almost everything within contemporary culture possesses the capacity to offend Bork. He attacks movies for featuring “sex, violence and vile language.” He faults television for taking “a neutral attitude toward adultery, prostitution, and pornography” and for portraying homosexuals as “social victims.” As for the art world, most of what is produced is “meaningless, uninspired, untalented or perverse.” He frets that the “pornographic video industry is now doing billions of dollars worth of business” and the invention of the Internet will merely result in the further indulgence of “salacious and perverted tastes.” When it comes to music, “rock and rap are utterly impoverished … emotionally, aesthetically, and intellectually.”

More to the point, Bork is not content merely to criticize; he wants the government to do something about it. “Sooner or later,” he claims “censorship is going to have to be considered as popular culture continues plunging to ever more sickening lows.” So committed is he to this cause that he dedicated an entire chapter in his 1996 book Slouching Toward Gomorrah to making “The Case for Censorship.” In it, he advocates censoring “the most violent and sexually explicit material now on offer, starting with obscene prose and pictures available on the Internet, motion pictures that are mere rhapsodies to violence, and the more degenerate lyrics of rap music.”

When asked by Christianity Today about how he would decide what should and should not be censored, Bork announced: “I don’t make any fine distinctions; I’m just advocating censorship.” He went on to argue that the United States has a long history of censorship, and that such censorship “didn’t suppress any good art, it didn’t eliminate any ideas.” He goes on to state that, were individuals to decry such censorship as inhibiting their individual liberty or right to express themselves, he would reply “… yes, that is precisely what we are after.”

In choosing Bork to head his legal team, Mitt Romney is sending a clear message to the farthest right of the Right Wing... \and reminding us all that our 2012 vote for president is also a vote for the Supreme Court for the next generation.

PFAW

The Supreme Court for Beginners

Do you care about clean elections, fair pay, civil rights, environmental protections, and the right to seek justice when you’ve been wronged?

Then you should care a whole lot about the Supreme Court.

In a new video, People For the American Way Foundation provides an animated guide to the Supreme Court and how its decisions impact all Americans. Enjoy:

 

PFAW

Senate holds historic hearing on DOMA repeal

Today, Sen. Patrick Leahy convened the Senate Judiciary Committee to hold the body's first ever hearing on the repeal of the Defense of Marriage Act (DOMA). DOMA, which prohibits the federal government from recognizing legal same-sex marriages, was signed into law in 1996, and since then has had a tremendous impact on the lives of thousands of married gay and lesbian couples and their families.

In March, Rep. Jerrold Nadler and Sen. Dianne Feinstein introduced the Respect for Marriage Act, which would repeal the discriminatory policies of DOMA and provide the same federal rights and benefits to same-sex married couples as their opposite-sex counterparts.

The three-panel hearing began with powerful and profound testimony from Rep. John Lewis, a leader of the Civil Rights movement. Calling DOMA a “stain on our democracy,” Lewis reaffirmed his continued commitment to fighting for the civil rights of all people, including gays and lesbians.

Representative Nadler echoed much of Lewis’ testimony, adding that DOMA hurts same-sex couples, especially those with children, because of the financial burdens that it places on them. Many of the witnesses in the second panel told stories of how the discriminatory law has been both a psychological and financial hardships for them and their spouses.

Because only two DOMA-supporting senators, Orin Hatch and Chuck Grassley, were willing to show up at the hearing, the task of arguing against the legislations repeal was left to some of the witnesses.

Edward Whelan of the Ethics and Public Policy Center claimed that the fight for marriage equality and repeal of DOMA is part of the left’s plan to “path the way for polygamy and other polyamorous relationships,” ignoring the fact that no state to legalize marriage equality has seen any organized movement to legalize polygamy.

Thomas Minnery of Focus on the Family claimed research shows children raised in households headed by a same-sex couple were worse off than those in a “traditional family,” ignoring, well, just about every scrap of objective research on the subject. The research he was citing, however, was a study done by the Department of Health and Human Services, which in fact suggests children are better off with two parents regardless of their gender.

Watch Sen. Al Franken question Minnery’s misuse of the study below: 

The Senators asked the witnesses important questions about the very real and powerful harms DOMA has caused same-sex couples and their families. Many of their stories were heartbreaking and show the necessity for repealing this discriminatory law.

Contact your representative and senators and urge them to support the Respect for Marriage Act. All Americans deserve to be treated with fairness and dignity, and the Respect of Marriage Act would ensure that all Americans have access to the protections that only marriage can afford.

PFAW

Warren faces Issa one more time before launch of Consumer Financial Protection Bureau

Elizabeth Warren appeared before the House Oversight Committee yet one more time on Wednesday – her third trip to the Committee – in advance of the Consumer Financial Protection Bureau’s (CFPB) launch next week. The Dodd-Frank Wall Street and Consumer Protection Act, signed into law in nearly one year ago, called for the creation of the CFPB as a way to ensure consumer protection from fraudulent and abusive practices by banks, mortgage companies, lending agencies, and other services and products.

As the lead architect of the agency’s creation, Warren faced relentless questioning from the panels’ Republican members, who probed her about issues including the bureau employee salaries, the agency’s budget, and her views on parts of the Dodd-Frank Act. Instead of finding ways to support an agency tasked, by Congress, with the mission of protecting American consumers from fraud and abuse, it seemed instead that the Republicans were looking for ways to undermine Professor Warren and the work of the upcoming agency.

There is a place for serious oversight for any government agency, but it is clear the Republicans are not interested in oversight, but rather in bringing down the agency before it even gets off the ground.

The CFPB is essential for protecting the financial security, stability, and wellbeing of both American families and the nation’s economy. Indeed, insufficient financial regulations and lack of consumer protections led to the recent financial meltdown that has so devastated our economy and created such hardship for working families.

Chairman Issa has already shown that he is not serious about looking out for the financial interests of the American people. He refuses to issue subpoenas to many of the banks that are behind the foreclosure crisis, abruptly halted an investigation of the Financial Crisis Inquiry Commission despite legitimate evidence of wrongful malfeasance by some of its members, and continues to attack the work of Elizabeth Warren and the Congressionally mandated agency she has been so instrumental and committed to building.

Congressman Jim Cooper put it best during the hearing when he expressed his disappointment in the committee. He admonished its members for constantly sticking to partisan talking points instead of truly focusing on the heart of the issues and doing what is right for the American people.

While Chairman Issa said he joined Representative Cooper in sharing this important message, let’s see if his actions speak louder than his words.

PFAW

Will California’s LGBT-inclusive curricula promote safer schools?

California's Governor Jerry Brown signed the Fair, Accurate, Inclusive, and Respectful Education Act (FAIR Act) today, a landmark piece of legislation requiring the state’s public schools to include LGBT history in their curricula. This major step forward is not only a sign of a significant societal shift, but is also proof lawmakers, activists, and everyday people are working to make things better for LGBT youth.

This exciting news comes at a time when we too frequently hear about numerous LGBT students suffering constant—and sometimes violent—bullying and harassment by their peers and even teachers. Though the FAIR Act is by no means a solution to the bullying problem by itself, its impact will hopefully help foster an environment of tolerance and respect in California’s public schools.

While states such as California continue to make important strides towards equality and inclusiveness, it is important that we continue tackling the bullying problem head on by supporting federal legislation such as the Safe Schools Improvement Act, the Student Non-Discrimination Act, and the Tyler Clementi Higher Education Act.

To learn more about these important pieces of legislation, please see our fact sheet on safe school and find out what you can do to support this effort.

PFAW

PFAW Denounces Voter Suppression Laws

At yesterday’s press conference on Capitol Hill, People For the American Way joined with Rev. Jesse Jackson, 12 other national civil rights organizations and numerous members of Congress to denounce the draconian and suppressive voting measures that have been enacted or are being considered by states across the country.

These laws, which create strict voter ID requirements, will have the effect of disenfranchising over 20 million potential voters who do not have any form of government-issued identification. Voters targeted by this legislation are disproportionately minority, low-income, disabled, elderly or student voters – all populations that the measures’ proponents see as an obstacle to their agenda. Strict voter ID measures have been introduced in more than half of the states so far this year, and Kansas, Tennessee, Texas, South Carolina and Wisconsin have already passed the legislation.

Of course, past investigations of voter fraud in this country have come to a startling conclusion: it doesn’t exist.  Even during a five-year campaign by President Bush’s Justice Department to prosecute voter fraud, only a few dozen people were ever convicted.  In most cases, they had cast votes without knowing they weren’t eligible.

We believe that it is every eligible American’s constitutional right to cast a vote that counts on Election Day. Efforts to prevent students, minorities, and disabled, elderly or low-income individuals from engaging in our nation’s civic and political life will not be tolerated and are simply not the American Way. People For the American Way is committed to fighting these suppressive voting measures alongside our civil rights allies and will continue to work with our network partners across the U.S. to ensure that every eligible American is able to exercise their constitutional right to vote.

Courtesy of the Lawyer's Committee for Civil Rights Under Law, the following map shows vote suppression legislation by state:

PFAW