discrimination

DHS, Congress, and President Obama: Stop separating our families!

There are an estimated 36,000 gay and lesbian binational couples in the United States. Because of the Defense of Marriage Act (DOMA) and other discriminatory federal policies, these Americans are unable to sponsor their foreign-born same-sex spouses.

Meet Frances Herbert and Takako Uedathey need your help! With Takako’s student visa set to expire, the threat of Takako’s deportation looms large for a couple who is legally married in Vermont and has known each other for over 30 years.

Anthony Makk and Bradford Wells are a couple in San Francisco who have been married for seven years. However, because their marriage is not recognized by the federal government, Wells, an Austrialian, faces deportation later this month.

Earlier this year, Rep. Jerrold Nadler and Sen. Patrick Leahy introduced the Uniting American Families Act (UAFA). It is a meaningful step toward providing equality to same-sex couples and keeping their families together. It would allow many same-sex partners to begin the immigration process more quickly, efficiently, and with fewer limitations. For many, it could very well be the only avenue available to keep their families together in the US.

Please join us in calling on President Obama and the Department of Homeland Security to keep couples like Frances and Takako and Anthony and Bradford together. Also, contact your senators and representative and urge them to cosponsor UAFA. All families deserve to stay together and have a chance at pursuing the American dream.

PFAW

Too Many Rulings are Supremely Courteous to Corporations

This op-ed was originally published at OtherWords.org

Americans realize that our rights and liberties depend on having a system of justice that we can trust. We know we should be able to show up in court to contest anything from a parking ticket to felony and make our case — whether we're rich or poor.

But there's one U.S. court where it's increasingly hard for individual Americans to have their voices heard. The Supreme Court — our court of last resort — is making it harder for individual citizens to hold the rich and powerful accountable.

In recent years, the high court has consistently twisted the law and Constitution to put giant corporations' profits over the rights of individual Americans. That means it's getting harder for citizens to seek justice when corporations stiff us.Supreme Corp.

In June, for instance, the Supreme Court ruled that more than a million women who had suffered wage discrimination as employees of Walmart couldn't join together to sue the company. Several women had filed a class action suit against the company on behalf of themselves and up to 1.5 million other women who faced similar treatment, seeking to pool their resources in order to go up against one of the most powerful corporations in the world. But the majority opinion ignored what the women had in common and focused instead on the differences bound to arise within a group that large, ruling that they couldn't go in it together to hold Walmart accountable. By sharply reducing the ability of employees to pool their resources, the court has made it easier for big employers to discriminate.

The Walmart case is only one example of the Supreme Court's growing tendency to side with the interests of big corporations over the rights of ordinary citizens. Earlier this year, the court ruled that Californians who had fallen prey to an alleged scam by their cell phone company couldn't join together to hold the company accountable. Because each customer was cheated out of a relatively small amount, few customers would go to the trouble of recovering their money. Many victims had not even noticed the relevant charge in their bill.

For these reasons, only a large class action lawsuit would serve to hold the company accountable. In another case, the court ruled that a financial firm accused of defrauding its investors couldn't be held liable because the firm had protected itself with a cleverly designed corporate structure. In doing so, the court both ignored the clear meaning of the law and essentially provided financial firms with an instruction manual on how to defraud their clients without being caught.

In the past year, the Supreme Court also handed two big victories to pharmaceutical companies. In one, it ruled that a state couldn't prohibit the sale or use of pharmacies' prescription data by drug companies without the prescribing doctor's authorization. In the other, the court let a pharmaceutical company off the hook for failing to warn about the dangerous side effects of a drug it was selling — a failure that resulted in at least one patient developing a painful and incurable neurological disorder.

Of course, sometimes the law really is on the side of big business. Our justice system requires that big corporations get a fair hearing just as ordinary citizens do. But they don't deserve more of a voice than the rest of us. The Supreme Court, guided by a right-wing majority, has increasingly bought the convoluted arguments of moneyed corporations lock, stock, and barrel, while turning a blind eye to the law — to say nothing of the impact on ordinary Americans. These decisions don't just hurt the individuals directly involved in them. They hurt us all, by limiting our rights and sending a signal to the wealthy and powerful that they can go ahead and abuse the rest of us without consequence.

Our founders wrote the Constitution to protect individuals against the whims of the powerful. But too often lately, the Supreme Court has twisted our laws to protect the powerful from being held accountable by individuals. Supreme Court justices and lower federal court judges must defend the Constitution, not twist it beyond recognition.

Marge Baker is executive vice president of People For the American Way.

PFAW

President Obama supports the Respect for Marriage Act

The day before last week's historic hearing on repealing the discriminatory Defense of Marriage Act (DOMA), President Obama reiterated his commitment to fighting for LGBT equality. White House Press Secretary Jay Carney read a brief but important statement expressing the president’s support for the Respect for Marriage Act.

   

President Obama understands that the Respect for Marriage Act is about ensuring that all families are treated equally and with the dignity and respect they deserve.

The bill currently has 120 and 27 cosponsors in the House and Senate, respectively. Please contact your senators and representative and ask them to join the President in fighting to repeal DOMA and fulfilling the promise of equality for all.

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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

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

Will Immigration Authorities Stop Discriminating Against Same-Sex Marriages?

Last year, we wrote about Joshua Vandiver and Henry Velandia, a married couple who risked being separated because of discrimination in federal immigration laws. Vandiver, an American citizen, and Velandia, a Venezuelan, were married in Connecticut, but because the Defense of Marriage Act prohibits federal agencies from recognizing same-sex marriages, Vandiver was unable to sponsor Velandia for a green card, and Velandia was at risk of being deported.

Then, earlier this month, Immigration and Customs Enforcement quietly closed the case against Velandia – in a move that could set a powerful precedent for how immigration officials deal with cases of married gay couples. From the New York Times:

In a decision that could have far-reaching effects on immigration cases involving same-sex couples, federal officials have canceled the deportation of a Venezuelan man in New Jersey who is married to an American man, the couple’s lawyer said Wednesday.

Josh Vandiver, left, and his husband, Henry Velandia, outside the immigration court in Newark on Friday.

The announcement comes as immigration officials put into effect new, more flexible guidelines governing the deferral and cancellation of deportations, particularly for immigrants with no serious criminal records.

Immigration lawyers and gay rights advocates said the decision represented a significant shift in policy and could open the door to the cancellation of deportations for other immigrants in same-sex marriages.

“This action shows that the government has not only the power but the inclination to do the right thing when it comes to protecting certain vulnerable populations from deportation,” said the couple’s lawyer, Lavi Soloway.

The case has been closely watched across the country by lawyers and advocates who viewed it as a test of the federal government’s position on the Defense of Marriage Act, a federal law that bars the federal government from recognizing same-sex marriages.

Vandiver, a Princeton graduate student, and Velandia told their story in a video for the Daily Princetonian last year:

 

PFAW

U.S. Senators to LGBT Youth: “We’re making it better”

Thirteen members of the Senate are the latest voices in the It Gets Better Project. In this five-minute long video, senators from across the country speak out to send a message of hope and support for LGBT youth and a call to action for all Americans. Check it out: 

Through its efforts and mission the It Gets Better Project sends a positive message to LGBT youth, but I applaud the senators for taking the message one step further by saying: “we’re making it better”. Going beyond the simple, yet powerful, message of “it gets better,” these senators show us that taking action—and not passively waiting—will result in significant advances and great victories for LGBT rights.

Pointing out their support for repeal of Don’t Ask, Don’t Tell, the Defense of Marriage Act, and some even speaking out in support of marriage equality, these senators show their commitment to fighting for the LGBT community.

“It’s going to get better. Believe in it, let’s fight for it.”  - Senator Udall (CO)

It is disappointing, however, that we only hear from the voices of Democrats. Speaking out against harassment and discrimination of any form, against any group should transcend partisan politics and be countered with action from both sides of the aisle.

In talking about the importance and necessity of working together, Senator Richard Blumenthal of Connecticut put it best:

“Our nation has always done better when all of us, no matter where we’re from, what we look like, or whom we love, work together.”

Making it better to ensure that it gets better requires courage, commitment, and hard work on the part of both our leaders and individuals. I am so pleased to see a handful of senators coming out in support of LGBT rights and fighting to fulfill the promise of equality for all.

Special thanks to the following senators for speaking out in support of LGBT rights and continuing the fight for equality: Sen. Richard Blumenthal (CT), Sen. Sherrod Brown (OH), Sen. Maria Cantwell (WA.), Sen. Dick Durbin (IL.), Sen. Dianne Feinstein (CA), Sen. Al Franken (MN), Sen. Kirsten Gillibrand (NY), Sen. Chuck Schumer (NY), Sen. Jeanne Shaheen (NH), Sen. Mark Udall (CO), Sen. Sheldon Whitehouse (RI), and Sen. Ron Wyden (OR).

And I would like to extend a very special thank you to Senator Chris Coons (DE), who believes “equality is a question of morality,” for leading this important and inspiring effort.

It is my hope that we will soon hear from more members of Congress—Democrats and Republicans alike—with a similar message of making it better for LGBT youth.

PFAW

Senate Judiciary Committee Exposes the Corporate Court

The Senate Judiciary Committee held an important hearing this morning looking into the disturbing trend of the Roberts Court to shut down people’s access to justice when they go to court to vindicate their rights against large corporations.

The hearing was on Barriers to Justice and Accountability: How the Supreme Court's Recent Rulings Will Affect Corporate Behavior. Chairman Leahy opened the hearing discussing how recent Supreme Court cases are making it harder for working Americans to get their day in court. He expressed particular concern about three cases:

  • Wal-Mart v. Dukes, which will make it harder to hold big companies accountable when they violate civil rights laws;
  • Janus Capital Group v. First Derivative Traders, which shielded from accountability those who knowingly committed securities fraud; and
  • AT&T Mobility v. Concepcion, which prevents victims of consumer fraud from the protections of jury trials and class actions.

The committee invited four distinguished people to address the issue: Betty Dukes (plaintiff in the sex discrimination case against Wal-Mart) was the one panelist who was also a party to one of the cases being discussed. She spoke poignantly about her experience at Wal-Mart and the fear that so many women have of going against their employer, especially one as powerful as Wal-Mart. She promised to continue her fight, but knows that without a national class action, many women will be intimidated into not litigating.

Andrew J. Pincus (a Washington lawyer who has argued many cases before the Court) and Robert Alt (from the Heritage Foundation) denied that the Court was tilting unfairly to favor corporations, argued that the cases were decided rightly, and stated that the Court was simply upholding existing law. In contrast, Melissa Hart (law professor at the University of Colorado) and James Cox (law professor at Duke) took the position that the Court is wrongly shielding wrongdoers from accountability.

Professor Hart correctly characterized as a policy decision the Roberts Court's tendency to interpret procedural law so restrictively, despite congressional intent otherwise, so that Americans become unable to present their case to an impartial court.

Senator Whitehouse discussed the critical role juries play in American government. He noted that juries are mentioned three times in the Constitution, and that they remain a government institution that Big Business cannot corrupt. For years, the far right has been denigrating "trial lawyers" and "runaway juries" in an effort to keep Americans from being able to hold the powerful accountable. Whitehouse argued that the Roberts Court is acting consistently with that pattern.

People For the American Way Foundation submitted testimony to the committee on how the Roberts Court has removed substantive and procedural protections that are the only way that individuals can avoid becoming victimized by giant corporations that dwarf them in size, wealth, and power. These decisions often provide road maps to corporate interests in how to avoid accountability for harm that they do. The constitutional design empowering individuals to consolidate their power against corporations is slowly being eroded by a fiercely ideological Court. Today's hearing is part of an effort to expose the harm that is being done.

PFAW

A Call to Action: Restore Equal Employment Opportunities in America

Saturday was the 70th anniversary of President Roosevelt’s issuance of Executive Order 8802, which prohibited racial discrimination by defense contractors. Last week, Congressman Bobby Scott hosted a press conference and briefing in honor of the anniversary of this event, which marked the first time a U.S. president had acted to combat discrimination by private employers who were using federal taxpayer money. Future presidents expanded on President Roosevelt’s action and added to its protections.

However, this was more than just a celebratory event of an important civil rights milestone: it was a call to action to correct an erosion of equal employment opportunity law that has been in effect since 2002. That’s when President Bush signed an Executive Order that made discrimination on the basis of religion by faith-based organizations using federal taxpayer money legal. In so doing, he reversed our nation’s continuous expansion of the promise of equal protection and opened a gaping hole in our nation’s civil rights protections. Religious entities had always been able to discriminate based on religion using their own money, but never to use taxpayer money to do so.

All the panelists were united in asking President Obama to fulfill his campaign promise of restoring the law. On the panel were: Congressman Bobby Scott (convener of the event); Congressman Jerrold Nadler; Professor Eric Arnesen (professor of history at George Washington University and biographer of civil rights and labor leader A. Philip Randolph, whose activism prompted FDR’s executive order); Rabbi David Saperstein (Director of the Religious Action Center of Reform Judaism, and also a board member of our affiliated People For the American Way Foundation); Barbara Arnwine (Executive Director of the Lawyers’ Committee for Civil Rights Under Law); Hilary Shelton (Director of the NAACP Washington Bureau); and Rev. Dr. Paul L. Brown, Sr. (Pastor of Miles Memorial CME Church and member of People For the American Way’s African American Ministers In Action).

Among other things, speakers discussed how employment discrimination harms the victims and society as a whole; warned that religion can easily be used as a proxy for race, sex, sexual orientation, and gender identity; condemned discrimination paid for by the tax dollars of its victims; asked why the religion of someone ladling out soup for the hungry should matter; and warned of the dangerous consequences to churches that want to retain federal funding they have become dependent on. As the last speaker, Rev. Dr. Brown opened a window into his daily work helping the hungry and the homeless, the “least and the lost,” and strongly condemned federally funded discrimination.

When he was running for President, then-Senator Obama promised to reverse President Bush’s policy, but he has yet to do so. What better time than the anniversary of the issuance of Executive Order 8802 for President Obama to put our nation back on the right road and restore through executive order the prohibition against federally funded discrimination? Yesterday, People For the American Way and African American Ministers In Action joined more than 50 other civil rights and religious organizations asking him to do just that.

PFAW

Wal-Mart, Class Action, and Rules Without Remedies

One of the daunting realities of modern life is that we as individuals are confronted by far more powerful corporations. When we want to buy a product, get a job, or seek to hold a large corporation accountable for its misdeeds, our negotiating power is limited by the fact that we are individuals. In contrast, due to its eternal life, its being composed of thousands or even millions of people, and its many state-granted benefits such as limited liability, corporations have consolidated vast resources that would be impossible for any living person attain.

So when that corporation does wrong against individuals – when it engages in a pattern of illegal discrimination, sells defective products, or cheats its customers – the victims often are powerless to hold the corporation accountable unless they, too, can consolidate their resources.

That’s why class actions are so important – and why Big Business keeps asking the Roberts Court to sabotage people’s ability to band together in class actions. Earlier this term, the Corporate Court undercut class actions against consumer fraud in AT&T v. Concepcion. And Monday, it struck out against women employees seeing to hold Wal-Mart accountable for illegal employment discrimination.

Wal-Mart is the nation’s largest private employer. Several women sued the corporate giant on behalf of themselves and similarly situated women around the country - anywhere from 500,000 to 1.5 million employees. To sue as a class, they would have to show that they have claims typical of the whole group.

So that’s what they did. As Justice Ginsburg’s dissent pointed out, the district court that had certified them as a class had identified systems for promoting in-store employees that were sufficiently similar across regions and stores to conclude that the manner in which these systems affect the class raises issues that are common to all class members. The women showed that Wal-Mart has a national corporate climate infused with invidious bias against women. Wal-Mart’s policy is to have personnel decisions made by local managers, all of whom are products of that toxic corporate climate.

But the conservative majority’s 5-4 opinion, authored by Justice Scalia, went out of its way to overlook that obvious commonality, focusing instead on the differences that will inevitably be present when a corporate giant targets so many people. The Roberts Court accepted Wal-Mart's assertion that the women cannot be designated a class because the representative plaintiffs do not have claims typical of the whole group.

What this 5-4 opinion states is that Wal-Mart is so large – and the discrimination it has allegedly engaged in is so great – that its victims cannot unify as one class to hold the company accountable. Individuals or small groups are much less likely to have the resources to seek justice.

Large corporations may be licking their chops at the opportunities the Roberts Court has opened to them to violate the law. They realize that a rule without a remedy is no rule at all.

PFAW

Department of Education takes another stand for LGBT youth

In October and December of 2010, the Department of Education took a stand for LGBT youth by issuing guidance to address bullying in schools, especially as it relates to federal education anti-discrimination laws. One of those laws, Title IX of the Education Amendments of 1972 (Title IX), prohibits discrimination on the basis of sex. While the language does not specify sexual orientation and gender identity, the Department has made clear that harassment on these grounds, under certain circumstances, violates Title IX.

Yesterday, the Department of Education released new guidance, this time focusing on the right of students under the Equal Access Act to form extracurricular clubs, including gay-straight alliances (GSAs).

Secretary Arne Duncan:

Gay-straight alliances (GSAs) and similar student-initiated groups addressing LGBT issues can play an important role in promoting safer schools and creating more welcoming learning environments. Nationwide, students are forming these groups in part to combat bullying and harassment of LGBT students and to promote understanding and respect in the school community. Although the efforts of these groups focus primarily on the needs of LGBT students, students who have LGBT family members and friends, and students who are perceived to be LGBT, messages of respect, tolerance, and inclusion benefit all our students. By encouraging dialogue and providing supportive resources, these groups can help make schools safe and affirming environments for everyone.

[ . . . ]

It is important to remember, therefore, that the Equal Access Act’s requirements are a bare legal minimum. I invite and encourage you to go beyond what the law requires in order to increase students’ sense of belonging in the school and to help students, teachers, and parents recognize the core values behind our principles of free speech.

The announcement was met with strong support across the safe schools community.

Eliza Byard, Executive Director, Gay, Lesbian, and Straight Education Network:

Secretary Duncan's Dear Colleague letter is a clear signal to schools and school districts that they may not discriminate against students who seek to form Gay-Straight Alliances. We are grateful to the Department of Education for supporting students' rights, attempting to prevent discrimination and affirming the positive contributions Gay-Straight Alliances make to the life of our schools, right alongside other non-curricular clubs.

Laura Murphy, Director, ACLU Washington Legislative Office:

Gay-straight alliances can play a crucial role in improving students’ lives. Just as with other extra-curricular groups and clubs, students have a federal legal right to form GSAs. Our public schools should be promoting fairness and acceptance, not discrimination.

Human Rights Campaign:

Gay-Straight Alliances are powerful forces in our schools. Not only do they offer a safe and supportive environment for LGBT students but they allow straight allies to show their support. One of the most powerful impacts that a GSA can have, however, is on those students who aren't even members - the very existence of a GSA shows students who may still be coming to terms with their orientations that someone at their school cares.

PFAW agrees that every student, LGBT or not, has the right to be educated in the same way, including equal access to extracurricular clubs. Click here and here for more information.

PFAW

DADT repeal on track but not unchallenged, need for vigilance remains

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.

  • Section 533 – Slow down repeal by adding the service chiefs to the certification process. A thoughtful process is already in place. Repeal must be certified by the President, the Defense Secretary, and the Chairman of the Joint Chiefs of Staff in order for it to go into effect, and even then there is 60-day waiting period prior to the full policy change. These Administration officials are the men tasked with setting military policy. The services chiefs will advise as appropriate, but are ultimately tasked with executing the policies set at the Administration level.
  • Section 534 – Enshrine DOMA within the military and the DOD civilian corps. DOMA is unconstitutional. The courts agree. So do President Obama and the Attorney General. With DOMA’s future, at the very least, up for review, if not wholly in doubt, it would be foolish to reaffirm it now.
  • Section 535 – Restrict the right of chaplains and other military and civilian personnel, and the use of DOD property, to perform marriage ceremonies. When DADT repeal takes effect, even if DOMA remains in place, there is no reason why these personnel and facilities shouldn’t be available to same-sex couples whose marriages are recognized at the state level. We wouldn’t force individual chaplains to perform same-sex marriage ceremonies, but we also shouldn’t restrict their ability if they wish to do so.

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.

PFAW

Tennessee: Front and Center on Anti-Gay Legislation

Tennessee really seems to be going down the rabbit hole with their recent anti-gay legislation. Last month, a bill advanced to their state Senate, the “Don’t Say Gay” bill, which would prohibit educators from discussing any sexual orientation other than heterosexuality with students in kindergarten through eighth grade. This not only applies to lessons in classrooms, but to all discussions between educators and students. Any acknowledgement that gay people exist is officially prohibited, a cruel effort to isolate and declare as abnormal any children who are gay or who have gay family members (including parents).

This week, Gov. Bill Haslam signed a bill prohibiting local governments from enacting anti-discrimination laws that are stricter than those in state law. This new law overturns the recent Nashville Metro Council ordinance requiring businesses contracting with the city to prohibit discrimination based on sexual orientation and gender identity. Tennessee state law prohibits discrimination based on race, creed, color, religion, sex, age, or national origin, but that leaves out a number of groups who are still facing discrimination with no legal support.

Haslam told a reporter, "We're not in favor of discrimination in any form at all," but actions speak louder than words, and Haslam’s support of this legislation certainly screams out loud and clear.

Nashville attorney Abby Rubenfeld is currently putting together a lawsuit to fight this legislation. She notes that the bill is homophobic and targeted at LGBT workers, but it would also affect veterans, disabled people, and other groups that aren’t protected by the state anti-discrimination law.

PFAW

Scalia and Thomas Urge Results-Based Decision

This week, the two most famous arch-conservative Supreme Court Justices openly praised results-based jurisprudence and the legitimacy of bending the law in order to reach the desired result. Coming from Justices who have derided others for allegedly shaping their legal decisions to reach a preferred outcome, this was a jarring example of hypocrisy.

The case of Brown v. Plata involves California's prisons, which are so overcrowded as to violate the Eighth Amendment's prohibition of cruel and unusual punishment. A lower court had ordered California to reduce its prison population by tens of thousands of inmates in order to remedy the constitutional violation. In a 5-4 opinion authored by Justice Kennedy and joined in by the four more progressive Justices, the Supreme Court upheld the lower court order.

The opinion frankly acknowledged that the release of prisoners in large numbers "is a matter of undoubted, grave concern." Nevertheless, after a careful analysis of the law, as well as the state's long history of failing to cure the constitutional violation, the majority concluded that there is simply no other realistic way for California to come into compliance with the United States Constitution.

In their dissent Justices Scalia and Thomas quite frankly acknowledged a fondness for results-based jurisprudence:

There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa. One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageous result.

The law does not exist in a vacuum, and there are circumstances in which common sense and fairness dictate how the law should be interpreted. For instance, in the Ledbetter sex discrimination case, the dissenters correctly looked at the consequences of the majority’s cramped interpretation of the law and saw that it was not in line with the law’s purpose of eliminating sex discrimination in the workplace. Justices Scalia and Thomas joined the flawed majority opinion that ignored the real world impact and thereby violated legislative intent.

The jurisprudence of Justices Scalia and Thomas is littered with, to use their term, "outrageous results" – women who can’t sue for ongoing illegal sex discrimination (Ledbetter), parties whose rights are forever lost because they followed a judge’s incorrect instructions (Bowles v. Russell), or a disabled man who had to crawl up two flights of courthouse stairs who they said could not sue to enforce his rights under the Americans with Disabilities Act (Lane v. Tennessee). It sometimes seems that they actually take pride in not caring about the harsh consequences of so many of their decisions. And now Justice Scalia – who once told law students that "[i]f you're going to be a good and faithful judge, you have to resign yourself to the fact that you're not always going to like the conclusions you reach" – is writing that judges' interpretation of the law should be shaped by the result they want? They should bend the law to reach a foreordained conclusion? The hypocrisy is stunning.

Scalia and Thomas and their arch-conservative colleagues are generally more circumspect when they engage in results-based jurisprudence. For instance, with their votes, the Roberts Court has become notorious for regularly bending the law in order to rule in favor of large corporations, as we saw in Citizens United. But it is nevertheless jarring to see these two Supreme Court Justices openly support blatant results-based jurisprudence.

PFAW

Prop 8 Proponents Change Their Tune on the Damage of Marriage Equality

In their latest attempt to stymie marriage equality in the courts, the lawyers defending California’s Proposition 8 are now claiming that Vaughn Walker, the judge who ruled the state’s marriage discrimination unconstitutional, should have been disqualified from the case because he is gay.

The argument that a gay judge shouldn’t be allowed to handle gay rights cases is pretty flimsy to begin with – but now it’s caused the anti-equality attorneys to paint themselves into a pretty tight corner:

Now, as the sponsors of Proposition 8 try to convince the courts that the judge who overturned the measure had a built-in bias as a gay man with a longtime partner, their opponents are invoking that same campaign message: If Prop. 8 was meant to preserve opposite-sex marriages, they argue, then any judge, gay or straight, would have the similar conflict of interest.

In their latest court filing, the measure's supporters reply that they never promoted Prop. 8 as a benefit for married couples - just for society as a whole.

"Our argument is that adoption of same-sex marriage will likely harm the institution of marriage over time, not that any individual's existing marriage will be affected," said Charles Cooper, lawyer for the Prop. 8 campaign committee, a conservative religious coalition called Protect Marriage.

"The notion that all married heterosexual judges have a direct and substantial personal interest in the outcome of this case is, of course, patently absurd."

Oh really?

Because in the Prop 8 trial last summer, Cooper himself argued that allowing gay people to marry would actively harm heterosexual marriages…by somehow encouraging heterosexuals to cheat on their spouses.

And then there’s the famous ad that Protect Marriage’s major financial backer, the National Organization for Marriage, created to boost Prop 8:

These people sound pretty personally threatened by the prospect of gay people getting married.

Maybe Prop 8’s proponents have changed their minds about the dire consequences of marriage equality. Or maybe they’re just once again running up against the lack of logic behind their case.

 

PFAW

Focus on the Family Leader Admits that Right is “Losing” Equality Debate

Jim Daly, president of the Religious Right group Focus on the Family conceded to an interviewer last week that anti-gay groups have “probably lost” the debate over marriage equality. It’s a big admission by a prominent figure on the Right, but it’s also an acknowledgement of what has become common sense. Poll after poll shows that for the first time majorities of Americans support marriage equality, with the highest numbers among young people. As anti-gay legislation is fought out in the courts and in statehouses, it is accompanied by a sea change in public opinion that threatens to make it archaic.

After last summer’s federal court decision striking down California’s Proposition 8, PFAW’s Michael Keegan noticed that Religious Right activists were beginning to admit defeat on gay rights:

This parade of apoplectic anger is nothing new--the Right has fought every step toward acceptance of gay people with similar Armageddon-invoking tirades. What is remarkable about the reaction to the Prop 8 decision is that within the anger are the beginnings of admissions of defeat. The Right has won many important battles against gay rights, but they are losing the war...and they know it.

A few days after Judge Walker's decision, the pseudo-historian David Barton, founder and president of the right-wing group WallBuilders, explicitly described the nervousness that has been behind much of the Right's outrage. The case against Proposition 8, Barton argued, could win in the Supreme Court...so opponents of marriage equality should sacrifice California in order to save anti-equality laws in 31 other states.

"Right now the damage is limited to California only," Barton told Tim Wildmon, President of the American Family Association during a radio interview, "but if California appeals this to the US Supreme Court, the US Supreme Court with Kennedy will go for California, which means all 31 states will go down in flames, although right now this decision is limited only to California...the problem is that instead of California losing its amendment, now 31 states lose their amendment. And that won't happen if California doesn't appeal this.

Last week, I went to a talk with the attorneys arguing the Prop 8 case, Ted Olson and David Boies. Olson said he saw their job as having two parts: presenting the Constitutional case against discrimination in the court of law, and presenting it in the “court of public opinion.”

“If we win this case,” Olson said, “we want people to look at it and say, ‘Of course. It’s about time.’”

Constitutional rights should never be decided by the will of the majority – that’s why we have constitutional rights in the first place. But Olson and Boies are building their case in a country where the rights of gays and lesbians are increasingly accepted as a given. The Religious Right isn’t going to give up its fight against equality anytime soon. But its leaders are beginning to see that they are fighting a losing battle in both the court of law and the court of public opinion.

PFAW

It's Time to Confirm Goodwin Liu

The Senate is currently debating the nomination of Goodwin Liu to the Ninth Circuit Court of Appeals. Liu is a phenomenally well qualified legal scholar who has support across the political spectrum, as well as among a majority of U.S. Senators. However, because Senate Republican leaders are putting politics over all else, they are set on stymieing the majority and filibustering the nomination. A cloture vote to end this stalling tactic may occur as soon as tomorrow morning.

People For the American Way supports the nomination. We sent a letter this morning that says much of what we have been saying in person on the Hill for over a year. Among other things, the letter states:

Perhaps the most powerful testament to Professor Liu's superb qualifications is the extensive support his nomination has garnered from across the ideological spectrum. It is not only progressive and moderate legal thinkers who admire his work: He has received endorsements from conservatives such as Ken Starr, Solicitor General under President Ronald Reagan; Richard Painter, the chief ethics counsel for President George W. Bush; and Clint Bolick, Director of the conservative Goldwater Institute.

When a judicial nominee attracts such strong support independent of political ideology, you can be confident that he is exactly the kind of mainstream, talented, and fair jurist we need on the federal bench.

Although Liu has the support of a majority of senators, his opponents are working to block his nomination from receiving an up or down vote. Their claim is that Liu's nomination constitutes one of those rare "extraordinary circumstances" warranting a filibuster, under the benchmark developed by the Gang of 14 during the George W. Bush Administration.

By no measure can this nomination be considered to even approach "extraordinary circumstances." Even a cursory look at President Bush's nominees who were approved using that test – those whose nominations were not considered to constitute "extraordinary circumstances" – makes clear that Liu's nomination must be permitted to go forward.

  • Pricilla Owen's dissenting positions on the Texas Supreme Court were so extreme that even her fellow conservatives on the Supreme Court in different cases described them with phrases like "an unconscionable act of judicial activism," "disregard of the procedural elements the Legislature established," "def[ying] the Legislature's clear and express limits on our jurisdiction," and "inflammatory rhetoric." Her nomination was not considered extraordinary, and the Senate afforded her an up-or-down vote for a seat on the Fifth Circuit, where she is now serving.
  • Thomas Griffith pushed to severely curtail laws ending discrimination against women and girls' participation in school athletic programs, declaring "illegal" a test upheld by all eight of the nation's Circuit Courts of Appeals that had considered the issue. He was also suspended from the DC Bar for failure to pay mandatory Bar dues yet continued to practice law in the District during that time. Published reports and an examination of Utah law indicated that he had been engaged in the unauthorized practice of law in Utah for the four years prior to his nomination. Nevertheless, the Senate did not consider Griffith's nomination extraordinary, and he received an up-or-down vote confirming him to a seat on the DC Circuit Court of Appeals.
  • Janice Rogers Brown criticized opposition to the Lochner decision, which began the period when the Supreme Court issued its most pro-corporate rulings—rulings that struck down laws requiring minimum wages, regulating working hours and conditions, and banning improper business practices. In addition, despite several Supreme Court rulings to the contrary, she explicitly suggested that Title VII of the 1964 Civil Rights Act is unconstitutional. Despite this record, her nomination was not considered an "extraordinary circumstance," and the Senate was allowed to cast an up-or-down vote, confirming her to the DC Circuit Court of Appeals.
  • William Pryor called Roe v. Wade "the worst abomination of constitutional law in our history" and urged Congress to consider repealing or amending Section 5 of the Voting Rights Act. Despite the significant opposition that these and other extreme positions garnered, his nomination was not filibustered, and he was confirmed to the Eleventh Circuit Court of Appeals.

Each of these nominees attracted substantial controversy and was opposed by numerous civil rights and civil liberties groups, but not one was found to constitute "extraordinary circumstances."

The claim that Goodwin Liu is out of the mainstream as compared to any of these nominees simply does not bear scrutiny. In fact, a fair reading of his work makes clear that Liu is well within the judicial mainstream.

By any standard articulated by either party, Goodwin Liu's nomination deserves a vote on the Senate floor, and he should be confirmed to the Ninth Circuit Court of Appeals.

Tomorrow, we will learn which Republican senators are willing to toss logic, consistency, principles, and the good of the nation's court system out the window in order to score political points against a Democratic president.

PFAW

The Unwelcome Return of the Newt

After more than a dozen years out of office, former House Speaker Newt Gingrich jumped into the GOP presidential campaign this week, rolling out his candidacy via social media and a friendly interview with Fox News Channel's Sean Hannity. Gingrich thinks he's just what is needed to save America from itself and its flirtation with Barack Obama and the rest of the evil of what he calls the "secular-socialist machine."

Much of the media attention of Gingrich's candidacy has centered around his role in the 1995 government shutdown, which Gingrich alone seems to think was a great success for the GOP, and his more recent urging of congressional Republicans not to fear a repeat. The implication seems to be that if you're the kind of voter who wants a more combative conservative willing to take down the federal government in order to bring down deficits, Newt may be your guy. But that kind of discussion -- and the crazily early poll-watching "which tier is he in?" stories -- miss something more important. Let's remind ourselves what kind of person Newt Gingrich is, and what kind of impact he has had on our public life.

Gingrich hasn't exactly been in hiding. In fact, he is at the center of his own machine, a 24/7 festival of self-promotion that includes an emailed "Newt and Callista Weekly Recap" courtesy of Gingrich Productions. If self-promotion were the top trait Americans were looking for in a president, Gingrich would be a shoo-in. But the job requires a bit more than that. People For the American Way's Right Wing Watch, Mother Jones and Media Matters have already posted compilations of Newtonian 'wisdom' from a long and dishonorable career. Once you start to consider characteristics like honesty and integrity, it becomes clear that Gingrich is unfit to lead our country.

The Newt McCarthyism

Gingrich is an enthusiastic participant in the right wing's divisive and destructive McCarthyism, portraying his political opponents as enemies of America's very existence. In To Save America, Stopping Obama's Secular-Socialist Machine, he warns, "America as we know it is now facing a mortal threat... The secular-socialist machine represents as great a threat to America as Nazi Germany or the Soviet Union once did... It's up to those of us who love our country to save America from the destructive, irreversible transformation that the Left have in store for us." In Real Change: The Fight for America's Future, he claims that the Obama administration (that would be the Faith-Based Initiative-continuing, National Prayer Day-celebrating, Easter Breakfast-sponsoring Obama administration) "has shown an unprecedented hostility to Christianity." He promotes ridiculous Religious Right claims about religious persecution in America, saying that Christians are threatened by "gay and secular fascism."

Gingrich spoke this spring at the Texas church led by John Hagee, whose support proved too controversial for John McCain in 2008. Newt combined two of his favorite threats, secularists and Islamists, into one memorable, if intellectually incoherent, sentence, declaring that he feared that his grandchildren could grow up "in a secular atheist country, potentially one dominated by radical Islamists and with no understanding of what it once meant to be an American." He told the Christian Broadcasting Network's David Brody, "In a sense, our Judeo-Christian civilization is under attack from two fronts. On one front, you have a secular, atheist, elitism. And on the other front, you have radical Islamists. And both groups would like to eliminate our civilization if they could. For different reasons, but with equal passion."

Newt is also placing himself at the forefront of the concerted conservative campaign to turn "American exceptionalism" into an attack on the patriotism of their political opponents. Candidates like Sen. Marco Rubio made American exceptionalism into a campaign theme in 2010, and hope to continue to smear Democrats as unbelievers in America's divinely-blessed founding and mission in the world. Gingrich has teamed up with Citizens United's David Bossie for a new "documentary" on American exceptionalism, A City Upon a Hill, The Spirit of American Exceptionalism, which features, among others, Donald Trump, Michele Bachmann, Allen West, Andrew Breitbart and Phyllis Schlafly.

Gingrich, an old hand at politics-by-smear, is responsible for much of the venomous state of our politics. In the mid-1990s, his GOPAC distributed to Republican lawmakers a memo titled "Language: a Key Mechanism of Control." The memo urged Republicans to use a set of denigrating words to describe their opponents and the Democratic Party: "decay, failure (fail) collapse(ing) deeper, crisis, urgent(cy), destructive, destroy, sick, pathetic, lie, liberal, they/them, unionized bureaucracy, 'compassion' is not enough, betray, consequences, limit(s), shallow, traitors, sensationalists, endanger, coercion, hypocricy, radical, threaten, devour, waste, corruption, incompetent, permissive attitude, destructive, impose, self-serving, greed, ideological, insecure, anti-(issue): flag, family, child, jobs; pessimistic, excuses, intolerant, stagnation, welfare, corrupt, selfish, insensitive, status quo, mandate(s) taxes, spend (ing) shame, disgrace, punish (poor...) bizarre, cynicism, cheat, steal, abuse of power, machine, bosses, obsolete, criminal rights, red tape, patronage."

Religious Liberty: Hypocrisy and Bad History

Gingrich, like other Religious Right political figures, postures as a defender of Americans' religious liberty against a deeply hostile elite, the "secular-socialist machine." Yet he joined with gusto the opponents of the proposed Park51 Islamic community center in Manhattan, which right-wing activists vilified as the "Ground Zero Mosque," saying, "There should be no mosque near Ground Zero in New York so long as there are no churches or synagogues in Saudi Arabia." In his book, Rediscovering God in America, Gingrich declared, "A steadfast commitment to religious freedom is the very cornerstone of American liberty." Regarding the Islamic center in New York, he said, "No mosque. No self-deception. No surrender."

Gingrich, like other Religious Right leaders, justifies his attacks on Islam by suggesting that it is not really a religion, saying radical Islam "is a comprehensive political, economic, and religious movement that seeks to impose sharia -- Islamic law -- upon all aspects of global society... Radical Islamists see politics and religion as inseparable in a way it is difficult for Americans to understand. Radical Islamists assert sharia's supremacy over the freely legislated laws and values of the countries they live in and see it as their sacred duty to achieve this totalitarian supremacy in practice." Yet while Gingrich decries radical Islamists' goal of achieving "totalitarian supremacy," one of his own organizations, Renewing American Leadership, is run by an advocate of the 7 Mountains Mandate, a dominionist theology that argues that Christians are meant to control the levers of power in every aspect of government and society.

Gingrich is ideologically joined at the hip to "Christian nation" pseudo-historian David Barton. In Barton's worldview, the First Amendment is not about protecting religious pluralism, but was only meant to keep the federal government from siding with one group of Christians over another. Barton believes the First Amendment should not apply at all to the states, but that states should be free to pose religious tests for office, and local religious majorities should be free to use public schools for proselytizing prayer. On Barton's radio show, Gingrich promised that if he ran, he would be calling on Barton for help, presumably the way Barton helped turn out evangelical voters for the Republican Party during George W. Bush's reelection campaign. It seems to be a mutual admiration society. When Barton and other right-wing activists were pushing for changes in Texas textbooks, they urged that Cesar Chavez and Thurgood Marshall be dropped, but that Newt be added.

Gingrich shares Barton's view of the federal courts as evil usurpers of the founding fathers' religious intentions. "There is no attack on American culture more destructive and more historically dishonest than the secular Left's relentless effort to drive God out of America's public square," Gingrich wrote in Rediscovering God in America. In a recent speech to the National Catholic Prayer Breakfast, Gingrich said the courts have been "especially powerful engines of coerced secularization," and that "From the 1962 school prayer decision on, there has been a decisive break with the essentially religious nature of historic American civilization." While in Congress, Gingrich promoted the Religious Right's false claims that courts had somehow banned students from praying, and repeatedly supported efforts to pass a constitutional amendment to return organized prayer to public schools.

Politics over Principle

In addition to intellectual arrogance, a shameless lack of principle may be Gingrich's most identifying characteristic. When the popular uprisings in the Middle East spread to Libya, Gingrich denounced President Obama for not immediately imposing a no-fly zone: "We don't need to have the United Nations. All we have to say is that we think that slaughtering your own citizens is unacceptable and that we're intervening." Less than two weeks later, when the U.S. joined other nations in imposing a no-fly zone, Gingrich attacked Obama, saying "I would not have intervened" and declaring that "it is impossible to make sense of the standard for intervention in Libya except opportunism and news media publicity." Newt clearly knows a thing or two about opportunism and publicity-seeking; getting some coverage for an attack on Obama was clearly more important to him than questions of U.S. policy in Libya.

Hubris

For all the far-right's charges that President Obama harbors anti-democratic tendencies -- Gingrich vowed to Hannity that he would abolish all the White House "czar" positions by executive order -- Gingrich's own behavior has made it clear that he sees himself as so superior to others, such an essential treasure for the nation, that the rules he would apply to others should not apply to him. When his second wife asked Newt how he could give a speech about the importance of family values just days after he admitted that he was having an affair, he reportedly told her, "It doesn't matter what I do. People need to hear what I have to say. There's no one else who can say what I can say. It doesn't matter what I live." That is a breathtaking level of hubris, even by presidential candidate standards. And when the CBN's Brody lobbed him the fluffiest of softballs by asking him to talk about his affairs in the context of his experience of God's forgiveness, Newt blew it by blaming his cheating on his love of country: "There's no question at times of my life, partially driven by how passionately I felt about this country, that I worked far too hard and things happened in my life that were not appropriate."

So Right and So Wrong

Gingrich's policy positions are pretty much standard fare in today's far-right Republican Party, including anti-worker, pro-corporate economic policies and support for criminalizing abortion. He has demonstrated his new-found commitment to the sacred nature of marriage by trying to buy the support of Religious Right activists in presidentially important Iowa, where he funneled about $200,000 into an unfortunately successful campaign to punish and purge three state Supreme Court justices who had voted to end marriage discrimination against same-sex couples in the state.

America is grappling with a set of deeply serious challenges at home and abroad. Americans would benefit from a substantive discussion of those problems and the policy choices that face them. What they're most likely to get from Newt Gingrich is toxic McCarthyism, petty and unprincipled partisanship, and preening self-promotion. Thanks but no thanks.

Cross posted on The Huffington Post

PFAW

A Reminder of the Mendacity of the Bush Administration

The Washington Blade is reporting on a seemingly frivolous lawsuit launched by a former high-level Bush Administration official that tells us a lot about anti-LGBT zealotry and the mendacity of the previous administration. It involves RICO, the federal racketeering statute.

Scott Bloch was President Bush's choice to lead the Office of Special Counsel, the agency designated to protect federal employees from illegal discrimination and to ensure whistleblower protection. During Bush's first term, he ordered the removal of all information on filing complaints of sexual-orientation discrimination from OSC's website and brochures. And he didn't exactly protect whistleblowers in his own office. As reported by Talking Points Memo back in 2007:

Bloch himself has been under investigation since 2005 for a variety of infractions, including retaliating against employees who took issue with internal policies and discriminating against those who were gay or members of religious minorities. At the direction of the White House, the Office of Personnel Management's inspector general has been pressing on with an investigation of Bloch.

During the investigation, Bloch bypassed OSC's tech staff and hired "Geeks On Call" to scrub his office computer files. He was finally removed from office in the final year of the Bush Administration. Last year, he pleaded guilty to contempt of Congress for hiding the computer caper from a House committee.

Now, according to the Blade, Bloch is going after the gays and his former Republican colleagues:

Two gay Obama administration officials and the Human Rights Campaign were lumped in as defendants with former Bush administration operative Karl Rove and more than a dozen others in a federal racketeering lawsuit filed by anti-gay Bush official Scott Bloch.

[The lawsuit] charges the defendants – including former GOP Congressman Tom Davis of Virginia – with conspiring to force Bloch out of his job as head of the U.S. Office of Special Counsel through a trumped up criminal investigation, according to Courthouse News Service, which first broke the story. ...

One of the Obama officials being sued is Elaine Kaplan, who ran OSC during the Clinton Administration.

In his lawsuit, Bloch alleges that the Bush White House demanded that he back off from reversing Kaplan's polices at the Office of Special Counsel, saying White House aides threatened to arrange for his dismissal if he failed to comply with their request.

Bloch and his wife, who are representing themselves in the case, filed their suit under a federal statute called the Racketeer Influenced and Corrupt Organizations Act, or RICO. The statute allows both criminal and civil charges to be brought in cases where the government or a private party alleges that others conspired to commit an illegal act or to damage a person or a business through a "criminal enterprise."

Other parties named as defendants in the lawsuit include the Executive Office of the President, the Office of Special Counsel, the National Treasury Employees Union, and several government watchdog groups, including the Government Accountability Project.

Bloch and his wife are representing themselves against this giant conspiracy. One has to wonder if the reason Bloch is representing himself is because no other lawyer could be paid to take it.

Bloch makes up in zealotry what he seems to lack in competence, and he is the person Bush chose to head of the Office of Special Counsel. Despite his disregarding of the law in order to hurt gays and strike back at whistleblowers, the White House kept him on. It was only after the FBI investigation and the embarrassing computer episode became public that he was removed from office. That says everything you need to know about the Bush Administration and its commitment to the rule of law.

PFAW

Attorney General Disappoints on Faith-Based Issue

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."

PFAW