SCOTUS Schedule Speaks a Thousand Words

The Supreme Court clearly can't proceed with certain cases it accepted before the current vacancy opened until the Senate fills that vacancy.
PFAW Foundation

AAMLC Statement on Ohio Voting Rights Victory

On Wednesday, a federal court in Ohio ruled that Secretary of State Jon Husted could not rely on half measures that do little to right the proven wrongs of the state’s massive—and illegal—purge of voters. The court instructed the state to instead protect voters’ rights and let them know what they might encounter this Election Day.

Minister Leslie Watson Malachi, director of the African American Ministers Leadership Council at People For the American Way Foundation, released the following statement:

“This is a victory not only for Ohio voters but also for our democratic system. Illegally purging voters from the rolls undermines the most fundamental right we have as Americans. And the fact that African Americans and low-income people were disproportionately purged makes it all the more outrageous.

“Our elected leaders should be looking for ways to engage more people in the democratic process, not trying to block people from casting a ballot. We applaud the court’s decision protecting the rights of these voters who were wrongfully targeted.”


PFAW Foundation Releases Report on Extremist Anti-Choice Movement’s Return to Wichita

WASHINGTON—Today People For the American Way Foundation released a report on the extremist anti-choice movement’s return to Wichita, Kansas, this summer, a quarter century after the “Summer of Mercy” in which close to 2,000 anti-abortion activists were arrested in clinic blockades. The report documents the July 2016 Wichita convening through in-depth, first-hand reporting and provides background on the history of and trends in the extremist fringe of the anti-choice movement.

Among the report’s findings:

  • A major theme of today’s fringe anti-choice movement is pushing state and local officials to simply defy federal laws and Supreme Court rulings on abortion. They have been empowered in this by more mainstream conservatives’ increasing embrace of “nullification” strategies.
  • This part of the movement’s routine harassment of abortion providers is made more unsettling by its direct connections to the violent peripheries of the anti-abortion movement—as exemplified by its embrace of activists like Matt Trewhella, who once signed a statement saying that the murder of abortion providers is justifiable homicide.
  • The relatively small turnout at this year’s Wichita events was marked by increased virulence, with activists beginning to see some success in getting their messaging out to the broader conservative movement.

“Despite their small numbers,  these activists argue that they have the power to curtail abortion rights for the entire country," said Miranda Blue, research editor at People For the American Way Foundation and principal author of the report. “What’s most alarming is that it’s a message and approach that is increasingly being embraced by people in positions of some power in the conservative movement.”

A short video showing footage and photos from the Wichita events is available here.

Through the Right Wing Watch blog, Blue regularly monitors and documents the activities of anti-choice right-wing activists. She is available for interviews with the press. To arrange one, please contact Laura Epstein at media@pfaw.org.


People For the American Way Foundation Calls on Florida Governor Rick Scott to Extend Voter Registration Deadline

Given the severity of Hurricane Matthew, including the ordered evacuations of 1.5 million people, People For the American Way Foundation is calling on Florida Governor Rick Scott to reconsider his stance against extending the voter registration deadline for Floridians. People For the American Way Foundation Director of Outreach and Public Engagement Diallo Brooks issued the following statement:

“Our thoughts are with those impacted by Hurricane Matthew. As Floridians are rightly focused entirely on emergency preparedness and response, we call on Florida Governor Rick Scott to move the voter registration deadline. Scott should stop playing dangerous, partisan games with the storm that is currently battering Florida and extend the state’s voter registration deadline as his counterpart in South Carolina did.

“Voting is the most significant way most Americans participate in our democracy. For centuries, Americans have fought for the right to vote, and we continue to fight hard for that right today.

“There should be no need for a fight here: In the face of what could be one of the worst hurricanes in Florida’s history, there’s simply no justification for denying a person the right to vote through refusing to move the voter registration deadline, which would ensure that all who would like to exercise their right to vote can have the opportunity to register to vote.”

People For the American Way Foundation is a progressive advocacy organization founded to fight right-wing extremism and defend constitutional values including free expression, religious liberty, equal justice under the law, and the right to meaningfully participate in our democracy.



The Supreme Court Term 2016-2017: A Sabotaged Court Tries to Carry On, With Our Rights in the Balance

To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way Foundation
Date: October 3, 2016
Re: The Supreme Court Term 2016-2017: A Sabotaged Court Tries to Carry On, With Our Rights in the Balance

With the Senate simply ignoring the nomination of D.C. Circuit Judge Merrick Garland to the Supreme Court for more than half a year, our nation’s highest court begins its new term the same way it spent the second half of the last one: short one member, divided ideologically 4-4 on many issues, and unable to fully function properly.

This is not be the first time the Supreme Court has begun a term short-staffed. But it is the first time a nominee for a Supreme Court vacancy has remained pending across two terms of the Court. And this is happening because the Supreme Court’s ability to carry out its constitutionally mandated role is being deliberately compromised. Even though Justice Antonin Scalia passed away almost a full year before President Obama leaves office, Senate Republicans immediately announced that they would not consider anyone he nominated, no matter who it was, so that the seat could be filled by the next president (who they hope will be a Republican). They transformed the nation’s highest court into a political football, and they are fighting to keep the seat open for Donald Trump to fill.

In June, People For the American Way released The Supreme Court Term 2015-16: Lessons on an Extended Vacancy. In addition, with the Constitutional Accountability Center, PFAW Foundation issued a report on Harming Justice: Effects of an Eight-Justice Supreme Court (and an end-of-term supplement). These demonstrated how the 4-4 split on the Court left critically important constitutional and other legal questions unanswered. They included the constitutionality of the Obama Administration’s immigration executive actions, the legality of its accommodation to religious nonprofits with regard to contraception coverage for employees, and the continued ability of public sector unions to collect fair-share fees from non-members whose interests they are legally required to represent.

This year, more than 200 days after Judge Garland’s nomination, the Court begins its new term with the current vacancy still not filled. Likely because of the ongoing obstruction, the justices began their summer recess last June having accepted only 21 cases so far for the upcoming term, significantly fewer than normal at that point in time. Even with nine new ones accepted at the end of September, the number of cases is still lower than normal for this time. What point is there in accepting a critically important case when the Court is unlikely to be able to resolve the questions being raised?

As Justice Elena Kagan noted while speaking at Harvard Law School, “[p]resumably we're there for a reason. We're there to resolve cases that need deciding, answer hotly contested issues that need resolving, and you can't do that with a tie vote.”

Notably, one of the highest profile cases on the docket so far was accepted for review before Justice Scalia passed away. The Court at that time had no reason to shy away from the religious liberty issues raised in Trinity Lutheran Church of Columbia v. Pauley (see below). But now, even though it has been fully briefed and is ahead of many other cases in line, the Court has not yet scheduled it for oral arguments. The Court appears to recognize that it simply can’t do its job in this case as long as Senate Republicans continue to force it to operate without its congressionally mandated ninth seat.

Most of the cases accepted since Justice Scalia’s passing have been relatively low profile and not ideologically charged, concerning business and criminal law issues. But some of the cases accepted by the Court do raise important, high-profile issues, and there are others waiting in the wings that the Court may choose to hear once the Senate allows them to have their ninth justice.

Many of our rights and liberties will be on hold until the Senate allows the ninth seat on the Court to be filled. The next justice should respect our nation’s constitutional values of liberty, equality, and justice for all, as Merrick Garland’s career shows that he does. Justices that bend the law and twist logic in order to empower the powerful would constitute a major step backward in our nation’s ongoing struggle to live up to the ideals set forth in the United States Constitution. Analyzed below are some significant cases in several important issue areas that the Court has agreed to review or may review in 2016-17.

Religious Liberty

The Court already has one potentially significant religious liberty case on its docket, and it may very well grant certiorari in cases that raise other religious liberty issues.

Trinity Lutheran Church of Columbia v. Pauley: Direct State Financial Grants to Churches

As noted above, the Court agreed to hear this case before Justice Scalia’s passing but is clearly not scheduling it until they hope they will have a ninth justice. Assuming the Court has nine justices in time, this case has the potential to weaken church-state separation provisions in the U. S. Constitution and in numerous state constitutions.

Missouri has a competitive grant program for organizations to improve their playgrounds. Trinity Lutheran Church operates a religious preschool and daycare program that infuses sectarian instruction throughout the day. Trinity applied for a grant to improve the children’s playground despite the state constitution’s clear mandate for the separation of church and state. It explicitly prohibits the government from providing funds to churches, either directly or indirectly. It also specifically prohibits funding to help or sustain a religious school. So Trinity’s grant application was rejected.

Trinity, represented by the Alliance Defending Freedom, sued the state, claiming that denying it funds for its playground because it is a religious entity violates the U.S. Constitution’s Equal Protection and Free Exercise Clauses. According to the church, Missouri targeted religion for disadvantageous treatment, which can be justified only if the grant program is narrowly tailored to achieve a compelling government interest. Trinity claims there is no such compelling state interest, because (Trinity argues) the grant would be permissible under the federal Establishment Clause. Trinity also argues that the program forces adherents to choose between their religion and receiving a generally available public benefit, which denies them full and equal participation in the community and violates the Free Exercise Clause. Trinity gave no assurances to state officials that it would not use the taxpayer-funded playground for religious purposes. The Eighth Circuit rejected Trinity’s arguments.

PFAW Foundation joined an amicus brief authored by the ACLU pointing out the serious defects in Trinity’s legal argument. A fundamental principle of the First Amendment’s Establishment Clause is that states may not award direct grants to houses of worship. The Court has upheld indirect grants such as vouchers, where parents rather than the state decide whether to spend taxpayer funds on a religious or a secular school. But direct grants to houses of worship contravene the clear meaning and intent of the Establishment Clause. The Founders recognized that churches would either support themselves or not, and that religious liberty would be threatened, not enhanced, if the government could use its taxing and spending powers to favor certain religions or religion in general. In contrast, despite the Establishment Clause, Trinity and its allies would have the Court require state support of churches and other houses of worship.

In a similar case challenging state constitutional “no aid” provisions, the Court is considering whether to grant certiorari in New Mexico Association of Nonpublic Schools v. Moses. There, the state constitution states that no funds spent for educational purposes can be spent on “any sectarian, denominational or private school, college or university.” This covers all private institutions, not just religious ones. Based on that provision, the state supreme court struck down a program in which the state purchases non-religious educational material selected by public and private schools and lends them to qualified students in either public or private schools, which allows those schools to divert funds they would have otherwise used to obtain the material. The New Mexico Association of Nonpublic Schools, represented by the Becket Fund for Religious Liberty, filed a certiorari petition with the Court, not asking it to take the case immediately, but rather to hold on to it pending resolution of Trinity Lutheran Church. It asserts the New Mexico constitutional provision violates the federal Free Exercise and Equal Protection Clauses.

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission: Religion as a sword to deny other people their legal rights

The Court has not yet decided whether to hear this case involving the ability of a bakery to refuse services to a same-sex couple. Masterpiece Cakeshop is another vehicle used by the religious right to portray LGBT equality as inherently inconsistent with religious liberty. It is also an effort to expand their efforts to transform religious liberty from a shield designed to protect rights into a sword designed to strip others of their rights. The case relies on claims under the Free Exercise Clause as well as the First Amendment’s free speech provision.

The bakery is owned by Jack Phillips, who practices a version of Christianity deeply hostile to LGBT equality. When two men asked him to design and make a wedding cake for a local celebration after their planned marriage in Massachusetts (Colorado did not permit them to marry at that time), the bakery owner refused, saying his religion disapproved of their marriage and so he would not create wedding cakes for same-sex couples. However, Colorado prohibits discrimination in public accommodations on the basis of sexual orientation, and as a business open to the general public, the bakery was ordered to end its policy of discrimination.

Masterpiece argues that creating and baking a wedding cake is an expressive act signifying his approval of the marriage being celebrated. Therefore, compliance with the anti-discrimination law would be unconstitutional compelled speech he does not agree with, under the First Amendment.

The problem with this argument is that there is no indication that the cake would contain a message that the baker would be offended or repulsed by (such as a written racist, political, or religious message on the cake). The Eighth Circuit concluded that operating a public bakeshop that designs and sells wedding cakes in compliance with anti-discrimination laws does not convey a celebratory message by the baker himself. Any pro-equality message that an observer might interpret from the cake would be attributed to the couple, rather than to the baker. In addition, the court ruled that simply obeying a law does not express agreement with it.

Masterpiece also claims that enforcement of the law violates the bakery owner’s rights under the Free Exercise Clause. (There is no RFRA claim, because that is a federal law, and Colorado has no state-level equivalent.) Under the 1990 Employment Division v. Smith case (which weakened the Free Exercise Clause and led to the passage of RFRA in response), the Free Exercise Clause does not excuse a person from complying with a valid and neutral law of general applicability on the ground that it prohibits or requires conduct in violation of their religious beliefs.

The 5-4 Hobby Lobby case showed that five justices were willing to transform the concept of religious liberty into a weapon to deprive others of their legal rights. But one of those in the majority was Justice Scalia, so the Court is divided 4-4 on this fundamental issue. Last term’s Zubik v. Burwell failed to resolve the issue in the context of the Affordable Care Act’s accommodation for religious nonprofits with regard to contraception coverage; the Court essentially punted the issue back to the lower courts. But this is a question that will come up over and over again in the lower courts, until a ninth justice takes their seat and can help resolve the current impasse.

As with Trinity Lutheran Church, the bakery in this case is represented by the Alliance Defending Freedom.

LGBT Equality

Religious liberty cases like Masterpiece Cakeshop clearly implicate LGBT equality, since that community is a major target of the Far Right’s effort to redefine religious liberty. But LGBT equality issues have traditionally been raised in other contexts, and one such case may be heard by the Court this term.

Gloucester County School Board v. G.G.: Transgender equality under Title IX

This case – which the Supreme Court has not yet decided whether to take – involves a public school board’s efforts to prohibit G.G., a transgender boy, from using the boys’ bathroom at school. At issue is whether Title IX requires schools to allow transgender students to use the restrooms that are appropriate for their gender identity.

Title IX prohibits discrimination on the basis of sex in any educational program or activity receiving federal funding. So, for example, girls’ bathrooms and boys’ bathrooms must be comparable. The Department of Education’s Office of Civil Rights has interpreted this to require schools providing separate boys’ and girls’ bathrooms to generally treat transgender students consistent with their gender identity.

A district court rejected this interpretation and ruled in favor of the Virginia school district without a trial, but on appeal, a three-judge panel of the Fourth Circuit reversed the lower court and held that Title IX can be interpreted as the Department of Education does. The school district has appealed this ruling to the Supreme Court, which has stayed the appeals court ruling while it decides whether to take the case.

If the Court takes the case and rules that the DoE’s interpretation is reasonable but not the only possible one, then a future administration would likely be able to reverse it. A ruling that the department’s interpretation is the only correct one would cement the policy in place.

Voting Rights

Weeks before the 2016 term even began, the Court took interim actions having significant impacts on the right to vote in three states:

  • In August, the Court rejected North Carolina’s request to let it enforce provisions of a voter suppression law struck down by the Fourth Circuit, pending the outcome of the state’s appeal to the High Court.
  • In early September, the Court rejected Michigan’s request to enforce its new law banning automatic straight-ticket voting (where a voter can easily vote for all candidates of the same party running for any office). This will allow many voters to cast their ballots far more quickly and reduce lines at polling places.
  • Several days later, the Court declined to put a temporary hold on a lower court’s ruling striking down Ohio’s “Golden Week,” when voters can both register and vote at the same time. This period is used particularly by African Americans, but it will be unavailable to them this fall.

Any one of these cases could eventually be considered on the merits by the Court. Perhaps the most important of these is the North Carolina case.

North Carolina v. NC Conference of the NAACP: North Carolina has not yet submitted its petition for certiorari in this case.

In July, a three-judge panel of the Fourth Circuit Court of Appeals reversed a lower federal court and struck down North Carolina’s notorious voter ID law, as well as its provisions curtailing or eliminating early voting, same-day registration, out-of-precinct voting, and preregistration of 16 and 17 year-olds. The court concluded that not only did the law have a racially discriminatory impact, it was actually intended to make voting harder for African Americans. The judges concluded that provisions of the new law “target African Americans with almost surgical precision” without remedying the alleged problems the state claims were their justifications.

Struck down were the elimination of one of two Sunday early voting days (which have been used as “souls to the polls” voting turnout efforts by African Americans); a strict new photo ID law; same-day registration; out-of-precinct voting; and preregistration of 16 and 17 year-olds. All these provisions targeted voting methods more frequently used by African Americans, or required photo IDs that African Americans are less likely to have.

The Fourth Circuit ruling was an enormous victory for the right to vote. However, given the important issues raised, the lower court’s ruling on a constitutional basis, and the high profile of the case, it seems likely that the case will be appealed to and heard by the Supreme Court.

As noted above, the state had asked the Court to stay the Fourth Circuit’s ruling and allow enforcement of the new law during the November election, pending resolution of North Carolina’s as-yet-unfiled certiorari petition. On the preregistration provision, the Court split 7-1, with only Justice Thomas voting to let the state enforce it. But on all the other provisions at issue, the Court split 4-4. Without a majority, the petition was denied.

That 4-4 split suggests that if the case is ultimately decided by the Supreme Court, the identity of the ninth justice will be of enormous importance. Had Merrick Garland been granted timely consideration by the Senate, he likely would have been on the Court in time to provide a tie-splitting vote on North Carolina’s stay application.

Bethune-Hill v. Virginia Board of Elections and McCrory v. Harris: Racial redistricting.

The Court will be hearing two cases involving redistricting plans adopted after the 2010 elections that are challenged as racial gerrymandering.

In McCrory v. Harris, North Carolina appeals a decision by a three-judge district court that two of the Congressional districts created after the 2010 Census are racial gerrymanders in violation of the Equal Protection Clause.

The lower court said that strict scrutiny applies to race in redistricting only when race is the “dominant and compelling” consideration in drawling lines. In this case, the court ruled, race was the predominant consideration with respect to CD1 and CD 12, and the state legislature did not narrowly tailor those districts to serve a compelling interest. Plaintiffs in this case are two voters, one from each district, who claim that North Carolina used the Voting Rights Act’s Section 5 preclearance requirement (then in effect) as a pretext to pack African American voters into the two districts, thereby reducing their influence in other districts.

Bethune-Hill v. Virginia State Board of Elections addresses Equal Protection challenges to twelve state legislative districts. In this case, the lower court upheld the redistricting. It concluded that race was not the predominant factor in motivating the state legislature’s boundary choices in 11 of the 12 districts, and that they all survived the lower level scrutiny applicable in that situation. The court did find that race was the predominant factor in shaping one district (House District 75), but that the legislature had a compelling interest (compliance with the VRA), and its use of race was narrowly tailored to achieve that interest.

Improper redistricting is one way that the electoral influence of communities of color can be diminished. These cases may help lower courts determine when race has been used unconstitutionally.

Disability Rights

The Court has accepted three cases that could have a significant impact on people with disabilities.

Fry v. Napoleon Community Schools addresses the interplay among four federal laws designed to remove obstacles preventing people with disabilities from participating as full members of our society: the Handicapped Children’s Protection Act of 1986 (HCPA), the Individuals with Disabilities Act (IDEA), the Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act. In this case, a student with cerebral palsy was prohibited from bringing her service dog with her to school, which provided a human aide instead. At issue is whether her parents can sue for damages, which are not available under the IDEA, under the ADA and Section 504 without first going through all the state-level resolution efforts required by IDEA and HCPA.

Ivy v. Morath addresses efforts by five hearing-impaired Texans to get drivers’ licenses, but the basic legal question could have a much larger impact. Texas will not give out drivers’ licenses to anyone under 25 unless they first provide a driver’s education certificate. The problem is that the only entities that provide such certificates are private companies licensed by the state, and none would provide a sign-language interpreter for the students. They initiated a class action lawsuit against the state agency to get it to comply with the ADA. The major legal issue is whether, under the ADA, the state is liable for discrimination in a program when it has delegated responsibility to private contractors.

In Endrew F. v. Douglas County School District, the Court is being asked to resolve the level of benefit that school districts are required to provide to children with disabilities under the IDEA. Circuit courts have split on the issue. As a result, districts in some parts of the country only need to provide “some educational benefit,” while those in other parts of the country must provide a “meaningful educational benefit.”

Housing Discrimination

Bank of America Corp. v. City of Miami and Wells Fargo v. City of Miami raise questions about Miami’s efforts to hold lenders accountable for the long-term effects of their discriminatory policies. The Court has accepted and consolidated the two cases. Lenders are asking the Court to decide whether the Fair Housing Act (FHA) allows cities to be among those who can sue because of racial discrimination in housing committed by others against city residents. Also at issue is whether the term “aggrieved person” in the FHA just means an Article III injury, or whether it requires something more than that. The lenders are also challenging how far down the cause-and-effect line one can go before you can no longer say that the defendant’s actions were the “proximate cause” of a bad result, as required by the FHA.

Other Important Issues

Other important legal issues that will be decided this term – unless the Court splits 4-4 because the current vacancy remains unfilled – include:

  • Must certain acting government officials who have been nominated (but not yet confirmed) to positions requiring Senate confirmation step down from their acting position once nominated? This is not a constitutional case, but one interpreting a statute setting forth rules for filling higher-level vacancies in the government. In an era of partisan obstruction of executive nominees, this could have a significant impact. (National Labor Relations Board v. SW General)
  • Some state laws prohibit merchants from charging a surcharge when customers use credit cards, but allow them to offer discounts to those who pay by cash. Does it violate the merchants’ First Amendment free speech right to describe their cash/credit disparity as a “surcharge” rather than a “discount for cash” in order to discourage customers from using credit cards? This could be an important case, since the Roberts Court has in the past used the First Amendment as a way to strike down ordinary economic and business laws, just as the Due Process Clause was used for that purpose in the Lochner Era. (Expressions Hair Design v. Schneiderman).
  • The Court has accepted three cases that could have an impact on some immigrants. Lynch v. Morales-Santana challenges a federal law treating (for the purposes of citizenship) children born abroad with only one citizen parent, depending on whether the citizen was the child’s mother or their father. Jennings v. Rodrigues addresses various aspects of bond hearings for non-citizens in detention. Lynch v. Dimaya asks whether the term “crime of violence” in immigration law is so too vague and therefore unconstitutional.


The Supreme Court’s decisions affect everyone: individuals and communities, businesses and consumers, employers and employees. As Citizens United and Shelby County show, they can have profoundly dangerous consequences for the health of our democracy. But as Obergefell and Whole Women’s Health show, the Court can hold the key to undoing unjust and oppressive laws that violate people’s basic rights.

The type of Court we have going forward will depend on who is chosen to fill its vacancies. No matter what issues one cares about, the Supreme Court is critically important in that area.


People For the American Way FoundationStatement On Alabama Chief Justice Roy Moore’s Suspension

People For the American Way Foundation President Michael Keegan issued the following statement regarding Alabama Chief Justice Roy Moore’s suspension today for violating ethics codes with his defiance of the Supreme Court and lower federal courts on marriage equality:

Roy Moore has spent years advocating for the defiance of federal court rulings that he finds to be against his own personal religious beliefs. This is a dangerous position for anyone in elected office to hold, much less the chief justice of a state supreme court. The Alabama Court of the Judiciary has made it clear that regardless of Moore’s personal views on marriage equality, he still has the obligation to uphold the laws of the United States.

In February 2015, People For the American Way Foundation filed an ethics complaint against Chief Justice Moore for his efforts to stymie and defy a federal court ruling on marriage equality.


PFAW Foundation Statement on the Shooting of Terence Crutcher

WASHINGTON – On Monday the Tulsa, Oklahoma, Police Department released footage of a white police officer fatally shooting Terence Crutcher, an unarmed African American man. People For the American Way Foundation President Michael Keegan released the following statement:

“On behalf of everyone at People For the American Way Foundation, we offer our deepest condolences to the family of Terence Crutcher. This kind of horror is something no family should ever have to experience.

“It is unconscionable that an unarmed man standing beside his stalled SUV would be shot and killed by the police. It’s on all of us to speak out not only against excessive police force but against the systemic devaluation of Black lives in our country. 

"We challenge everyone within the progressive movement and all people of conscience to speak out, demand accountability and justice, and fight for policy change to address police brutality and systemic racism.”

People For the American Way Foundation is a progressive advocacy organization founded to fight right-wing extremism and defend constitutional values including free expression, religious liberty, equal justice under the law, and the right to meaningfully participate in our democracy.


Bryan Fischer: Only Those Who Believe In God And Oppose Abortion Are Qualified To Serve As Judges

American Family Radio host Bryan Fischer declared on his radio program on Friday that a person who does not believe in God or who supports abortion rights is unqualified to serve as a judge at any level in America.

Fischer got onto the subject after praising Donald Trump on his radio show for naming Marjorie Dannenfelser of the Susan B. Antony List as the head of his presidential campaign's pro-life coalition.

"I would submit to you that no man is qualified to sit as a judge in America who does not understand and believe that there is a Creator and that the Creator is the source of every single one of our fundamental, inalienable rights," Fischer said, "and that the first of these rights given to us by God is the right to life."

"No one is qualified to sit on any bench in the judiciary at any level, whether municipal or county or local or state or federal," he continued, "no man is qualified to sit on the bench who does not believe in a Creator, does not believe that the Creator is the source of all of our rights and does not believe that the very first of these rights, these legal rights, the constitutional rights, is the right to life."

Lester Holt, Let’s #FirstDebateDemocracy

Of the many pressing issues this election cycle, there is one that must be addressed first in order to accomplish much of anything else: the issue of democracy itself. Without fundamental reforms to how our political system operates, complex problems like climate change, racial injustice and economic inequality will only worsen as our elected officials continue to cater to wealthy donors rather than serving the interests of “We the People.”

People For the American Way joins our allies in calling on Lester Holt, the moderator of the first presidential debate on September 26, to ask Hillary Clinton and Donald Trump about their respective plans to deal with the issues of unchecked money in politics, efforts to undermine the functioning of the Supreme Court, and attacks on voting rights. The American people deserve to know what their next president will do to deal with these structural problems that hinder progress on countless issues facing our nation.

Take money in politics as an example. Hillary Clinton has made reforming the current campaign finance system a key pillar of her campaign ever since she announced her candidacy. She has called for a constitutional amendment overturning Supreme Court cases such as Citizens United, a small-donor matching system, and increased disclosure of political contributions. Furthermore, while she would prefer to reach bipartisan agreement with Congress, Clinton has said that absent such agreement, she will use her legal authority to issue an executive order requiring government contractors to disclose their political spending.

Donald Trump, on the other hand, has yet to offer any proposed solutions. While he consistently rails against a ‘rigged’ system, he has failed to explain how he would address this issue. If anything, he has boasted about how much money he has donated to politicians in the past, and how they were always “there for me.” Bragging about participating – and benefitting from – pay-to-play politics is hardly a case for reform, let alone an agenda to implement reform.

On September 26, the nation will tune in to watch the first presidential debate of this cycle. Democracy issues have already been cemented as a pivotal theme this election cycle, particularly given the quest for reform that fueled the campaign of Bernie Sanders, educating an entire generation of voters on the perils of Citizens United and our country’s big money system. If Lester Holt and NBC want to set the course of conversation in the right direction, and strike at the root of many problems that are of great consequence to the American people, they should commit to ensure that we #FirstDebateDemocracy.

PFAW Foundation

Right-Wing Pastor: Satan Is Staging A 'Homosexual Invasion' From The White House

In a sermon on “the deception of the homosexual agenda” at last month’s “Summer of Justice” event in Wichita, Kansas, Bishop Otis Kenner of Louisiana declared that Satan is staging a “homosexual invasion” to stop God from taking dominion over the earth and that the “devil” in the White House is in on it.

Kenner, who also addressed the crowd on the evils of suffragist Susan B. Anthony and women in the workplace, declared that Satan has “devised a system” using gay people to stop God’s “colonization of the earth realm” through procreation.

“Because the homosexuals know that they cannot procreate, so they take our innocent sons and daughters through adoption … to try to stop the colonization of God in the earth realm,” he said. He then spoke as Satan: “‘If I can get into their minds, if I can get into their spirit, then I can break the process of God, stop the procreation process of God and the colonization of the earth realm and make more just like them.’ It’s about them colonizing the earth with their own kind.”

“In 2008, I preached a sermon called ‘Homosexual Invasion,’” he said. “God has showed me this in 2008 how the homosexuals were going to invade our country because they want to stop the colonization of God in the earth realm.”

Kenner later addressed the lighting of the White House in rainbow colors on the evening of the Supreme Court’s decision in Obergefell v. Hodges, which struck down state-level bans on marriage equality.

Noting that the decision was handed down on June 26 of last year, he pointed out that the date included “two sixes, which means 666, the Mark of the Beast.”

“They legitimize same-sex marriages and they light the White House up with the gay pride colors to signify Satan is sitting at the seat of power,” he said.

“Will you vote for the devil because he showed up black?” Kenner said he had asked his congregation, clarifying that he wasn’t calling President Obama the devil, just that “what he did was the devil.”

This, he said, was all reason for Christians to “interpose” against LGBT rights laws and declare that “we will not allow a transgender bathroom in our schools.”

Anti-Abortion Event: Satan Used Susan B. Anthony To Put Women In The Workforce

Last month, Operation Save America organized a week of anti-abortion protests in Wichita, Kansas, to commemorate the 25th anniversary of the Summer of Mercy, the famous 1991 abortion protest event. Participants in OSA’s event were treated every night to a lecture at their host church including, one evening, a talk about the “deception of the homosexual agenda” that touched on how Satan worked through Susan B. Anthony to get women into the workforce.

Bishop Otis Kenner, a Louisiana clergyman who does African-American outreach for OSA, told participants that through Satan, “Susan B. Anthony and the women’s lib and equal opportunity has devalued our women and has put them into the workforce”:

The Bible says in 1 Corinthians 11:3, Christ is the head of man, man is the head of the woman and God is the head of Christ. Satan has devalued our women. Proverbs Chapter 31 talks about the virtuous woman and talks about her occupation in the home. She rises up early before her family gets up to prepare meat for them. She goes into the marketplace, she sews, she cooks, she invests. But Susan B. Anthony and the women’s lib and equal opportunity has devalued our women and has put them into the workforce. Whoever told our women that to be a homemaker was subservient?

Kenner said that women should be “pampered” and have a “good time” as long as they do all of the childcare work and are home when their husband gets home from work:

What it looks like, I got steel-toe boots on with a bandana around my head because I’ve been in the workforce, and my wife comes home looking like me? I mean, I just believe that women were to be pampered and was to be loved. You should get your nails done as much as you want, your feet done as much as you want, I mean just go shopping and all that kind of stuff, take care of the children, watch over them, just have yourself a good time, just be home when I get home from work. That’s not so bad, is it?

“Here’s the deal,” he concluded. “Because Satan has broken the governmental authority of God, he had put the women in the workforce. Who are raising our children? The government. And our public schools, they our turning our children out one by one.”

Operation Save America recently posted a video of the speech on YouTube.

NC Voting Restrictions Struck Down as Intentionally Discriminatory

A three-judge circuit court panel unanimously agrees that North Carolina passed its law with the intent to discriminate against African Americans.
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Flip Benham Says He Warned America About 9/11 But No One Listened

Flip Benham, the former head of the anti-abortion, anti-gay protest group Operation Save America who is now enjoying a renaissance as the father of right-wing culture-war heroes David and Jason Benham, made a surprise appearance at OSA’s “Summer of Justice” in Wichita last week, where he spoke at a rally for participants on Saturday night.

Benham recalled that he had been arrested in front of the White House just days before the terrorist attacks of September 11, 2001, which he said was a prophetic warning about the punishment that God was about to mete out on America for legal abortion.

On the day of the Sept. 11 attacks, Benham issued a statement directly linking the attacks to legal abortion:

The horrific attack on America this morning was no coincidence. Reminiscent of accounts in the Old Testament when God used prophets to warn nations of their wicked ways, America has been given its own warning over the shedding of innocent blood. The most recent national rebuke was this past weekend when a prophetic word was spoken to the White House and President George W. Bush on Saturday, September 8, 2001.

Rev. Flip Benham and 18 other pro-life pastors and leaders from across the nation gathered in the nation's capital to bring a prophetic warning that if we continue to sow bloodshed in the womb, we will reap it in ever increasing horror in our streets.

The astounding events of this morning are just another sign of the judgment of God upon our nation. We have turned our backs on God and we are now reaping the horrible consequences of our error. The President of the United States of America asked this morning for a "moment silence" to remember those in harm's way. There was not one mention of crying out to the only One who can save us, Jesus Christ!"

Benham returned to the theme in his speech last week, recalling his arrest in front of the White House in September, 2001, along with fellow anti-abortion activist Cal Zastrow. As police arrested them after a number of warnings, Benham said, an OSA protester read officers a passage from Deuteronomy in which God threatens to heap calamities upon those who defy Him.

“Do you know how many of us were arrested?” Benham asked. “How many? Nineteen. Nineteen of us. We come home on Sunday the 9th … and we get back home, and then on Tuesday, what happened? Nineteen men with box cutters tore us apart, crashed into the World Trade Center, both buildings, slammed into the Pentagon. God had given a warning! God had given a warning. Was there anybody that listened? But God was making himself known.”

Operation Save America Declares SCOTUS Rulings On Abortion & Gay Rights 'Null And Void'

A major theme at last week’s “Summer of Justice,” an event that Operation Save America convened in Wichita to commemorate the 25th anniversary of the anti-abortion Summer of Mercy, was the idea that laws that violate a particular reading of the Bible are not real laws and therefore should be ignored by elected officials.

As such, organizers convened an “ecclesiastical court” in front of Wichita’s federal courthouse on Thursday to hold the federal courts and the Supreme Court in “contempt” of God’s law, as determined by them. Eight OSA members, holding coffin-shaped signs with the names of Supreme Court cases on church-state separation, reproductive rights and LGBT equality, took turns coming to the microphone to read “charges” against the federal courts. The proceedings followed a script that the group used at a similar “ecclesiastical court” in Alabama last year.

The “charge” based on Roe v. Wade held that “America has committed domestic terrorism in the womb, and we are reaping terrorism in our streets.” The charge based on Planned Parenthood v. Casey, which upheld the central finding of Roe, linked the case to the 1999 Columbine school shooting, saying that the court “declared that man can determine his own reality, standards and meanings apart from the objective truth of Almighty God,” as the Columbine shooters did.

On Lawrence v. Texas, the case striking down bans on consensual sex between adults of the same sex: “Homosexuality means the burning out of man. It will destroy those who practice this perversion and nations that condone it.”

OSA leader Rusty Thomas closed the proceedings by declaring that “the Supreme Court of the United States of America has sinned against God” in issuing decisions protecting reproductive rights and LGBT rights (or, as he put it, “sodomy”) and accusing the court of “high treason against God and our nation.”

“Yes, the Supreme Court of the United States of America has betrayed our God, our nation, our people, our children, and has invited the wrath of Almighty God to come  upon us — all of us,” he said.

The Supreme Court, he said, has “forfeited all moral authority” and therefore “by the authority invested in us as ministers of the gospel of the kingdom,” OSA would render these objectionable rulings null and void.

He led the crowd in declaring: “We cancel these wicked decisions. We render them null and void. We prohibit their enforcement upon America and its citizens. We declare with one voice that these wicked decrees are no longer binding upon us, our children or our nation.”

“You’re literally acting today like a Moses to Pharaoh” by “telling our government what you are doing is not lawful in the eyes of God,” Thomas said.


Operation Save America To Police: End Violence By Outlawing Abortion

Operation Save America, the organization that grew out of the abortion protest group Operation Rescue, is in Wichita, Kansas, this week commemorating the 25th anniversary of Operation Rescue’s 1991 Summer of Mercy, in which thousands of people were arrested blockading abortion clinics. (The group that is now called Operation Rescue, which has long been in a bitter feud with OSA about its name, has tried to distance itself from the event.)
This week’s event has drawn a few hundred people, about half of them from out of state — a sizable group but a far cry from the phenomenon that was the Summer of Mercy. The activists are meeting up to protest in front of clinics and throughout the city in the morning and attending rallies in the evening, where they’re hearing a series of lectures on what OSA leader Rusty Thomas calls the need for a “paradigm shift” in how the anti-abortion movement approaches its cause.
Last night, attendees heard from Matt Trewhella, a pastor who runs a group called Missionaries to the Pre-born out of Milwaukee. Trewhella has written a book called “The Doctrine of the Lesser Magistrates,” which argues that “lesser magistrates,” meaning everyone from state governors to county clerks, have the duty to “interpose” to stop unjust laws being enforced by a higher authority. (Marriage equality and abortion rights are two examples; Trewhella also believes that adultery should be a criminal offense.)
Thomas riffed off this concept yesterday when he released an “open letter to the police in America” in which he urged police officers to demand that their legislatures call special sessions to “immediately outlaw abortion, grant the police the authority to shut down any death camp in their jurisdiction, and arrest those who participate in the barbaric act of abortion.”
The “violence, carnage, terrorism, and massacres” in America, Thomas wrote, are the result of the nation’s “blood guilt” stemming from Roe v. Wade. Also displeasing God, he wrote, is the willingness of law enforcement to be neutral on “sodomy, gay marriage, transgendered bathrooms etc.”
“Peace will never come to America as long as our country protects violence in the womb,” he wrote.
The swearing of the oath of every police officer ends with these words, “So help me God.” Thus, the oath of office taken by police officers does not just merely acknowledge God, but also implores His help to fulfill this ministry of good for our nation. Ultimately, police officers are called to be faithful to God from whom their lawful authority is established. Again, civil government is a delegated authority under God. Tragically, in recent decades, this oath has been greatly challenged by those who practice evil, (abortion, sodomy, gay marriage, transgendered bathrooms etc.). These subversive entities expect law enforcement to be “neutral” despite the fact that their activities are not only sinful, but criminal according to God. The federal government through immoral, unjust, and unconstitutional decrees has decriminalized their crimes.
The thin blue line that separates the criminal element from society is fading fast. Anarchy runs rampant while government tyranny grows. O ur nation stands in awkward amazement as violence, carnage, terrorism, and massacres are becoming a common everyday experience in our nation. To our horror, this violence has now targeted our law enforcement agencies. Why is this happening? There is only one answer from God’s Word, Blood guilt!
America has made a covenant of death with those who seek to murder innocent babies in the womb for blood money. Roe vs. Wade violated the sacred trust of law enforcement, which is to protect life and stop the shedding of innocent blood. Our nation has been defending the indefensible ever since.
Law enforcement officers, whom God has appointed to protect the most innocent amongst us are being used to protect those who would harm them. We call upon law enforcement to come out of the shadows of neutrality and join the Church of Jesus Christ to break this covenant with death. We charge them to lend their voice and influence to help end the violence that is not only savaging our nation, but our brave police officers as well.
We beseech police departments throughout America to rise up and demand the governor of their perspective states to call a special session. Police officers need to insist their states immediately outlaw abortion, grant the police the authority to shut down any death camp in their jurisdiction, and arrest those who participate in the barbaric act of abortion. Peace will never return to America as long as our country protects violence in the womb. We can shout black lives matter, blue lives matter, or all lives matter till the cows come home, but until preborn lives matter, no lives matter, including the police.


Glenn Beck Will Not Vote For Donald Trump Because He Doesn't Want To Answer To God

Glenn Beck spent a portion of his television program last night debating with audience members who are not very happy with his refusal to support Donald Trump, which Beck continues to insist he cannot do because voting for Trump carries eternal consequences.

To vote for either Trump or Hillary Clinton is to give his approval to genuine evil and "darkness," Beck said, and so unless God tells him otherwise, he cannot vote for Trump.

"We have to do what we feel the Lord would want us to do," Beck explained. "All I'm looking for now is to be seen in eyes of favor. Lord, I know who you are and I can't imagine standing in front of you and saying, 'But you don't understand, you weren't there.' He was there. And I don't want to say, 'I didn't have enough trust in you to hold the line on my principles' because those principles were right! Even if they were going to throw me in jail and crucify me upside down, I'm not wavering because I believe what I believe in and hopefully the Lord will recognize those who have trust in Him."

PFAW Foundation Statement on Police Killings of Philando Castile and Alton Sterling

In response to the police killings of Philando Castile and Alton Sterling this week, People For the American Way Foundation President Michael Keegan released the following statement:

“On behalf of the staff and board of People For the American Way Foundation, we offer our sincerest condolences to the families and loved ones of Alton Sterling and Philando Castile. We are committed to being in solidarity with them and all people who are systematically targeted. It is unacceptable that we live in a world where an African American is shot and killed when pulled over for a broken tail light, as Philando Castile was last night, or another is shot and killed while working to provide for his family, as Alton Sterling was on Tuesday.

“This year alone, at least 136 African Americans have been killed at the hands of the police. This violence cannot be allowed to continue. Police brutality and systemic racism must be eradicated.

“It’s up to every one of us to fight for a world and a society where Black lives matter. Far too many people in our country are systemically targeted, demonized, and forced to fear for their own safety and that of their families. We must fight for a very different future. We have to hold our elected and appointed officials, as well as police officers, accountable for excessive use of force that all too often targets people of color.”

People For the American Way Foundation is a progressive advocacy organization founded to fight right-wing extremism and defend constitutional values including free expression, religious liberty, equal justice under the law, and the right to meaningfully participate in our democracy.


Harming Justice: Effects of an Eight-Justice Supreme Court (End-of-Term Supplement)

To: Interested Parties
From: People For the American Way Foundation, Constitutional Accountability Center
Date: July 6, 2016
Re: Harming Justice: Effects of an Eight-Justice Supreme Court (End-of-Term Supplement)

About a month before the end of the Supreme Court Term that concluded in late June, Justice Ruth Bader Ginsburg commented that “eight” is “not a good number for a multi-member court.”  That statement echoed the words of many of her present and former colleagues on the Court and other federal courts. This includes the late Justice Antonin Scalia himself, who wrote in 2004 that proceeding with eight justices “impairs the functioning of the Court.”   This was also a key finding of our report earlier this year, entitled Material Harm to our System of Justice: the Consequences of an eight-member Supreme Court.

In fact, the last month of the Supreme Court’s Term has proven Justice Ginsburg and Justice Scalia correct. In two important cases decided in June – including a significant crucial case on immigration affecting literally millions of people across the country – the Court was unable to issue a decision on the merits and tied 4-4, leaving the lower court decision in place but setting no national precedent. In total, the number of 4-4 splits by the Court this Term was the largest in more than 30 years.  This end-of-Term supplement strongly reinforces the conclusion of our original report: “having a short-handed Court for an extended period of time is harmful to the proper functioning of the Court and to the nationwide rule of law.”

Key findings from the supplement, which can be read in full here:

In United States v. Texas, the 4-4 split resulted in:

  • Leaving millions of undocumented immigrants and their families in limbo.
  • The lack of precedent on the scope of the executive branch’s discretion under the nation’s immigration laws and the standing of states to bring suit in court.
  • Uncertainty over how federal courts in other parts of the country can address the legality of President Obama’s policies.

In Dollar General Corporation v. Mississippi Band of Choctaw Indians, the 4-4 split resulted in:

  • Continued uncertainty over whether or not Tribal courts have the authority to offer redress when one of their members is harmed by a nonmember.
  • Continued uncertainty over whether or not businesses and individuals subject themselves to Tribal jurisdiction by operating or doing business on American Indian Reservations.

Additional problems posed by an eight-justice Court, include:

  • The lack of a full Court in considering requests for immediate stays of lower court decisions or for injunctions temporarily blocking laws especially regarding voting rights challenges as the 2016 elections approach.
  • A more limited range of cases accepted so far by the Court for consideration during the 2016-2017 Term.

For more information on the effects of an eight-member Court as exemplified by the Supreme Court’s decisions in June 2016, please see Supplement: Material Harm to Our Justice System: The Consequences of an Eight-Member Supreme Court.


June Shows Why November is the Most Important Month for the Supreme Court and our Rights

This piece originally appeared in the Huffington Post.

Before it adjourned for the summer in late June, the Supreme Court issued a series of important decisions, or non-decisions, on affirmative action, immigration, abortion, and other subjects. As with the Court’s actions since last October, and particularly since the death of Justice Scalia in February, the most significant message sent by these developments is this: the elections this November will be absolutely critical to the future of the Court and to all our rights and liberties.

Start with immigration. The Court split 4-4 on the challenge brought by Texas and other states to the president’s executive actions that would have kept families together by shielding undocumented parents of U.S. citizens from deportation and, in total, helped more than 4 million people across the country. The result of the tie vote is that the lower court decision stands without any opinion by the Court, so that a nationwide injunction by a single Texas federal judge against the president’s orders remains in effect. Although the Court doesn’t reveal who voted how in 4-4 splits, it’s almost certain that the four votes against the orders came from Chief Justice Roberts and Justices Alito and Thomas, joined by Justice Kennedy.

The Court was also split 4-4 in another important case in June, concerning whether Indian tribal courts can rule in civil cases (this one involving an assault) against non-tribe members who do business on Indian land. Altogether, the Court issued 4-4 non-decisions in five cases this term, the most in more than 30 years – a direct result of Republican Senators’ unprecedented blockade of the Garland nomination.

In several other important cases in June, Justice Kennedy sided with the Court’s moderates and produced positive decisions. This included a decision striking down an extremely restrictive Texas law that seriously and improperly limited women’s access to abortion by imposing draconian requirements on abortion clinics, as well as a decision approving a University of Texas plan to increase diversity on campus through affirmative action in admissions.

So does this mean that we have nothing to fear even if the Republican blockade of President Obama’s nomination of Judge Merrick Garland to the vacant seat on the Court succeeds and a President Trump places a right-wing conservative on the Court, because Kennedy is voting with the Court’s four moderates? Absolutely not!

First, the immigration non-decision itself shows that Kennedy – the author of Citizens United and part of the 5-4 majorities in Shelby County and Hobby Lobby and so many other cases damaging our democracy and our rights – unfortunately sides all too often with the Court’s far right wing. That was also shown earlier this term when an apparent 4-4 deadlock forced the Court to essentially punt in the Zubik case, leaving the important question of access to contraceptives and employer religious questions in limbo until the Court again has nine members. Whether than ninth seat is filled by President Obama (or by President Clinton if the Republican blockade continues) or by a President Trump is critical.

In addition, the age of the current justices makes clear that there will likely be additional vacancies during the first term of the next president. Three justices will be above 80 during that time, older than the average retirement age for justices. The president who fills these vacancies could easily tip the balance of the Court, not just on the issues the Court dealt with in June, but also on the environment, money and politics, LGBT rights, voting rights, access to justice, protection from government abuse, and many more. And the answer to whether we have a Senate that is willing to do its job and actually hold hearings and vote on nominees, unlike the current Republican Senate that has refused to even hold a hearing for Judge Garland after more than 100 days, will be crucial as well. Election Day 2016 truly is judgment day for the Court and for all of our rights and liberties.

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