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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.

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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.

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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.

PFAW Foundation

Edit Memo: Supreme Court Term 2015-16: Lessons on an Extended Vacancy

To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: June 28, 2016
Re: Supreme Court Term 2015-16: Lessons on an Extended Vacancy

Introduction

Last fall, our Supreme Court 2015-2016 term preview warned about what, in the Roberts-Alito era, has unfortunately become the standard:

[It] is an extremely conservative Roberts-Alito Court whose new term begins October 5. They have chosen to hear a number of cases that risk continuing the aggressive rightward march that has characterized the past decade. The 2015-2016 term may be yet another one where the American people enjoy less liberty, less equality, less power, and less control over our own democracy on the last day of the term than we had on the first.

But the term unexpectedly turned into one like no other. Justice Antonin Scalia passed away on February 13, 2016, halfway through the term, guaranteeing that the Court would temporarily have only eight members. And conservative leaders announced within hours of Justice Scalia’s death that they would not consider any nominee put forth by President Obama, no matter who it might be, but would consider only whoever the next president would nominate – a president who would not even take office for nearly another year. This ensured that the Court would remain understaffed not only for the rest of the 2015 Term, but also most if not all of the 2016 Term starting next October.

While this did not affect all Court decisions (certainly not those issued before Justice Scalia’s passing), the vacancy had a profound impact on a number of the Court’s decisions … or its non-decisions, as the case may be. When the justices are divided 4-4 on a case, they simply issue a one-sentence opinion stating that “the judgment [of the lower court] is affirmed by an equally divided Court.” In so doing, the Court upholds just the result, not saying anything about the circuit court’s reasoning, and not creating any precedent or providing any guidance for other courts. Instead, it leaves a nationwide resolution of the legal question open for the future. In the meantime, the lower court’s decision and its reasoning remain binding within that circuit, which may be different from how other circuits have decided the issue.

This term saw a number of such 4-4 non-decisions. Particularly harmful was a 4-4 split in the immigration case, described below, which will have profound impact on the lives of families across this nation.  It also saw the justices working to avoid tie votes by ducking issues in one way or another. Consequently, resolution of many important legal questions has been significantly delayed. In some cases, people’s rights under federal law vary from one state to another as a result, exactly the opposite of why Congress passes such laws to begin with, and directly contrary to the reason we have a Supreme Court to be the final arbiter on legal questions.

During this unusual term, the actions and inactions of a Court that is ideologically split 4-4 on so many issues make it crystal clear that the Senate needs to end its misguided refusal to consider Judge Garland Merrick’s nomination, so that the Court can begin its next term in October with the full complement of justices that Congress intended.

One additional point came into greater clarity this term: that it is vitally important who we choose — as President as well as in the Senate — to fill the next vacancies on the nation’s highest court. Certainly, conservatives have taken this lesson to heart; it is notable that this term saw Justice Anthony Kennedy joining with the more moderate justices to produce 5-3 decisions in several important cases, in particular on abortion and affirmative action, much to the dismay of right-wing activists, who are now more energized than ever to make the future of the Court an issue in the 2016 elections. There can be no mistake – the 2016 elections will be Judgment Day for the Court.

 

Split Indecisions

Immigration

United States v. Texas: Perhaps no case better exemplifies the damage that can occur when a vacancy prevents the Supreme Court from resolving an issue than the DAPA/DACA+ case. In 2014, the Obama Administration used the discretion set out in the nation’s immigration laws to temporarily protect millions of families across the country from deportation. Although conservatives called this a usurpation of power, many legal scholars concluded that it was well within the president’s discretion. The court challenge began when conservative state governors chose to file a lawsuit in a district where it stood a good chance of being assigned to a particular judge whose previous judicial actions had clearly been affected by his open and intense political disagreement with the federal government’s immigration enforcement policies. They got the judge they wanted, and he issued a nationwide injunction ordering the Administration not to proceed, pending a full trial. A divided Fifth Circuit panel upheld the injunction.

The Supreme Court heard the Administration’s appeal and, with only eight members, divided 4-4. This did not answer any of the legal questions, but – devastatingly – left the lower court’s nationwide injunction in place pending a trial. Millions of people now have no idea what their status or that of their closest family members may be, because the next president may alter or eliminate the programs, and even if that doesn’t happen, it could be another term or more before the issue gets back to a nine-member Court. All that this vulnerable population can do is wait, forced to remain in the shadows.

The Rights of Working People

Friedrichs v. California Teachers Association: In this case, anti-labor advocates were asking the Court to overrule an important 1977 case on the rights of working people (Abood v. Detroit Board of Education) by striking down requirements that public sector employees who are not members of the unions that are required by law to represent them pay “fair share” fees to cover the costs of that representation. Justice Alito had already authored two opinions (Knox v. SEIU and Harris v. Quinn) criticizing the reasoning of the 1977 Abood precedent and, in the latter case, essentially invited conservative activists to generate a case to give the Court an opportunity to overrule it and severely weaken workers’ ability to come together, form a union, and effectively negotiate their working conditions and benefits. Friedrichs was that case.

Oral arguments seemed to suggest a likely 5-4 decision, against the unions. But a month later, Justice Scalia passed away. A few weeks later, an evenly divided Court affirmed the judgment of the lower court opinion, which had (consistent with the Abood precedent) upheld the fair share payments. As a result of the 4-4 split in this particular case, Abood (being a Supreme Court case) remains binding precedent for all lower courts throughout the nation, protecting the ability of working people to organize effectively. But uncertainty about this major issue affecting working people remains.

The parties seeking to eliminate fair share fees asked the Court to rehear the case when it is again fully staffed, a request the Court has denied. But if a restored Supreme Court takes a similar case in the future, there can be no question that the identity of our next justice will have an enormous impact on working people.

Affirmative Action

Fisher v. the University of Texas at Austin: In a 4-3 decision, the Supreme Court upheld the University of Texas at Austin’s affirmative action program, a carefully considered plan that has been in litigation for years. (Justice Kagan recused herself from the case because she had been involved in it while at the Justice Department, leaving only seven justices and making a tie vote impossible.) This was a major victory for Americans who cherish our national ideals of fairness and equal opportunities for all. Had Justice Scalia been on the Court, the result most likely would have been a 4-4 tie, due to Kagan’s isolated recusal as opposed to an extended vacancy.

Justice Kennedy wrote for the majority, joined by Justices Ginsburg, Breyer, and Sotomayor. The majority confirmed that UT has a compelling interest in the educational benefits that flow from student body diversity.  

The Fisher opinion also stated that universities must justify the use of race in admissions, even in the minor role it played at UT, with extensive research and careful analysis. The opinion went into great detail about the exhaustive efforts UT had made to determine whether it was necessary to ever take race into consideration in its admissions program. But the Court also noted that circumstances can change: Any university (including UT Austin itself) must regularly update its in-depth analysis of whether their admissions policies are adequately serving the purpose of providing the educational benefits of a diverse student body, or whether any ways to achieve the same goal can be devised that do not use race as a criterion. That would seem to ensure that public university affirmative action programs can be retained or possibly even expanded when necessary, or cut back or even eliminated if they are no longer needed to achieve their compelling goal.

Justice Alito’s dissent (joined by Justice Thomas and the Chief Justice) took a very different view of the case, accusing the majority of “licens[ing] UT’s perverse assumptions about different groups of minority students.”

Multiple people can see the same thing and interpret or experience it in completely different ways, based on their backgrounds and life experiences. That happens on university campuses, and apparently at the Supreme Court, too.

Other Issues

Hawkins v. Community Bank of Raymore: An evenly divided Court was unable to resolve a split between two circuit courts on whether a particular federal law allows lenders to require that a borrower’s spouse guarantee a loan. As a result, this type of discrimination on the basis of marital status is allowed in one circuit, illegal in another circuit, and a complete unknown in the circuits that haven’t considered the question. As a result, the conditions lenders can impose on people under a federal law depends on where you happen to live. Even lenders and consumers in some neighboring states have different rules that apply. The 4-4 tie by the understaffed Court leaves unresolved a legal question that affects borrowers and lenders alike. Also, as noted above, it wholly defeats the purpose of having federal laws, which are supposed to provide uniformity to address national issues. And it defeats the purpose of having a court established by the Constitution to resolve such matters. The Court subsequently denied rehearing in the case, so the confusion will remain until another case raising the issue is presented to the Court.

Franchise Tax Board of California v. Hyatt: In this case, an individual sued California in a Nevada court, without California’s consent, and won. California’s appeal to the Supreme Court had two components. One concerned the substance of the Nevada court’s ruling, but the other was more fundamental: California urged the justices to overrule a 1976 case (Nevada v. Hall) allowing people to sue a state in another state’s court without the first state’s consent. (In that case, a Nevada vehicle on official state business in California collided with another car; the California passengers were allowed to go the California courts and sue the state of Nevada.) The Supreme Court was evenly divided on the constitutional question of overruling the 1976 case, which meant the state court’s judgment that it had jurisdiction over another state was affirmed. As a result, the justices had to address the substantive issue, and on that they were able to reach a 6-2 decision. But the important constitutional question affecting relations among states and the rights of victims remains unanswered, leaving future litigants uncertain whether their lawsuits will be thrown out as unconstitutional.

Dollar General Corporation v. Mississippi Band of Choctaw: This case should have resulted in an important ruling on the authority of tribal courts in certain non-criminal matters. It involved a large chain store that had opened a branch within the Mississippi Band of Choctaw reservation, and a store manager who had allegedly sexually molested a teenage member of the tribe. An evenly divided Supreme Court was unable to address the basic question of whether Native American tribal courts have jurisdiction to hear a tort lawsuit against someone who is not a native American.

 

Deciding Not to Decide

Twisting Religious Liberty Into a Weapon

Zubik v. Burwell: Originally expected to be one of the bombshell cases of the term, this critically important religious liberty case turned out to be a dud, due to the apparent split on the 8-justice Court. Under the Affordable Care Act, the Administration crafted an accommodation to the contraception coverage requirement set forth in the ACA: If religious nonprofits disapprove of certain contraception, they simply tell their insurer or the federal government of their objection, at which point the insurer offers the coverage separately to employees who want it. But a number of conservative religious nonprofits claimed that even filling out a form with that information or otherwise making such a notification violated their free exercise of religion under the federal Religious Freedom Restoration Act (RFRA). Their argument was soundly rejected by every circuit that heard it but one.

A ruling for the religious nonprofits would have expanded the dangerous distortion of religious liberty that the Roberts Court began in Hobby Lobby, opening the door to even more efforts to use claims of religious liberty as a weapon to deny other people their legal rights. But a ruling for the Administration would have shown that this tactic has limits beyond which even the Roberts Court won’t go, hopefully providing some level of protection to populations targeted by the Religious Right.

But with only eight members, the Court took a highly unusual step: Less than a week after oral arguments, and after the justices had taken a vote among themselves on the case, the Court, in what appeared to be an effort to avoid a 4-4 non-decision crafted its own version of a policy compromise and asked the parties to address it. Ultimately, when the Court issued its final ruling in May, it did so in a unanimous unsigned opinion vacating all the lower court opinions on the subject and directing them to let the parties try to reach an agreement on their own. Buying itself time, the Court determined that if the Administration and the numerous religious nonprofits in litigation couldn’t reach agreement, (and agreement is highly unlikely), then the lower courts should readdress the issue, and the Supreme Court could eventually hear an appeal and settle the matter then.

In other words, the justices punted. They explicitly stated they were expressing no view on whether the accommodation was a substantial burden of the nonprofits’ religious exercise, or whether the government’s goal of providing women with access to contraceptive healthcare is a compelling interest.

Millions of women employees of religious nonprofits are left without certainty that they can obtain the contraception that they are entitled to under the law. Also left hanging and unsure of their rights are the employers claiming the accommodation violates their religious liberty. Nor has any guidance been provided for lower courts that may hear cases in other contexts involving the denial of legal rights to targeted populations under the guise of religious liberty. With an understaffed Court, everyone loses.

Limiting Congress’s Power to Hold Wrongdoers Accountable in Court for Violating People’s Rights

Spokeo v. Robins: Although it did not receive as much media coverage as some of the other cases this term, Spokeo was an extremely important case. The Supreme Court accepted it to address the question of whether someone has standing to sue in federal court if their “only” injury is that a right created by Congress was violated. At issue is whether such cases meet the constitutional requirement that federal courts have jurisdiction only where there is an actual case or controversy before them. A ruling in favor of the corporation that had allegedly violated the law would have severely weakened the ability of Congress and the people of our country to hold corporations accountable when they violate a federal law.

But when the understaffed Court issued its opinion, it provided no answer to this extremely important question. Instead, in a 6-2 opinion, the justices expressed no position on whether the plaintiff had standing to sue (the key issue in the case), called the Ninth Circuit’s standing analysis “incomplete,” vacated the lower court’s opinion, and directed it to revisit the issue.

Although we don’t know for sure, this “deciding not to decide” may very well have been done as a compromise to avoid a 4-4 tie. In any event, the issue is likely to come back to the Court after the Ninth Circuit rules again.

 

Cases Not Affected by the Vacancy

Of course, not all high-profile cases were affected by the vacancy. Some were decided before Justice Scalia died. Some were decided after he died, but with a majority opinion nonetheless.

Reproductive Freedom and Choice

Whole Woman’s Heath v. Hellerstedt: Decided on the last day of the term, this 5-3 opinion authored by Justice Breyer struck down Texas’s notorious targeted regulation of abortion providers (TRAP) law. Such laws, pushed by anti-choice zealots across the country, are presented as protections for women’s health, but in reality they are designed to reduce if not eliminate women’s access to abortion. Such laws are a key component of the far right’s long-term project of gradually chipping away at the constitutional right to an abortion. However, what they achieved instead was a ringing affirmation of that right.

The majority (Justices Breyer, Kennedy, Ginsburg, Sotomayor, and Kagan) reversed an opinion of the Fifth Circuit Court of Appeals that had upheld requirements that (1) licensed abortion facilities meet the same building requirements as an ambulatory surgical center, and (2) those performing abortions have admitting privileges at a hospital within 30 miles. The Court ruled that these are medically unnecessary regulations with the effect of putting an undue burden on women’s ability to exercise their constitutional rights, a key part of the test set forth by the Supreme Court in 1992’s Planned Parenthood v. Casey (which Kennedy was part of).

The Court criticized the Fifth Circuit for not providing the level of scrutiny appropriate for a constitutional right, but instead treating its review of the law with the same deference that ordinary legislation receives. The justices directed lower courts to look critically at whether a law affecting abortion actually accomplishes the goals the state is using to justify it. In this case, the Court went into great detail on how the Texas law burdens women’s access to abortion, and it demonstrated how the law was, in fact, not necessary to protect women’s health but makes it much harder to get access to abortion services. As such, the burden was undue, and thus unconstitutional.

Whole Woman’s Health strongly reaffirms Casey and will make it far more difficult for states to defend their TRAP laws from new court challenges, although much will depend on lower court factual findings. With women’s constitutional right to an abortion constantly under attack, this ruling serves as a powerful reminder of the importance of who will be nominating and confirming those who will serve on the Supreme Court and other federal courts.

Voting and Democracy – One Person, One Vote

Evenwel v. Abbott: The Court ruled 8-0 that when states fulfill their constitutional obligations to equalize populations within state legislative districts, they are permitted to do what they’ve always done: count the entire population, the same as what the Constitution requires for equalizing congressional districts. That provides equality of representation. But Sue Evenwel and Edward Pfenninger, Texans whose districts include relatively few non-citizens, had argued that states must count only eligible voters; otherwise, their vote counts less than the vote of someone who lives in a district with a large number of non-citizens or others who cannot vote. Richard Hasen had called this case “an attempted [partisan] power grab in Texas and other jurisdictions with large Latino populations.” Texas defended the “total population” approach but asked the Court to say that, in the future, states could also use just voting age population.

The Court didn’t take the bait. Writing for a six-person majority, Justice Ginsburg gave a powerful defense of equality of representation, tying it to the will of the framers of both the original Constitution and the Fourteenth Amendment. (Justices Thomas and Alito agreed with the result but not the reasoning.) In other words, every person deserves representation. Importantly, the Court refused to address the constitutionality of counting only eligible voters, saying that was a question they need not address in this case. Had the Court legitimized counting only eligible voters even without saying that states must take that approach, it would have been a dangerous signal to conservative state legislatures to break with precedent and model their districts that way in the future.

Voting and Democracy – Partisan Gerrymandering and Further Weakening Voting Rights

Harris v. Arizona Independent Redistricting Commission: This could have been a major case where the Court defined illegitimate partisan gerrymandering and ruled that such gerrymandering causing any population differences among districts invalidates redistricting decisions that were also done for legitimate reasons (like complying with the Section 5 preclearance requirements that existed at the time). Another question raised in this case was whether trying to meet Section 5 preclearance in redistricting that took place before Shelby County was legitimate at all, since the formula subjecting Arizona to that requirement was later found unconstitutional.  But in a unanimous 8-0 opinion, the Court concluded there was no reason to address the partisan gerrymandering issue. Writing for the Court, Justice Breyer concluded that seeking to comply with Section 5 preclearance, rather than partisanship, clearly explained the redistricting decisions. The Court also ruled that   Shelby County didn’t retroactively make the Arizona legislature’s motives illegitimate. So what had a potential to be a major case turned out not to be: the Court directly answered the question before it and did not effect a significant change in redistricting law.

Cutting Off Individual and Class Action Lawsuits

Campbell-Ewald Company v. Gomez: Class action suits are often the only way to effectively obtain redress from large companies for illegal conduct and provide deterrence for others. Over the years, the Roberts-Alito Court has been chipping away at the ability of victims to use class actions to hold corporations accountable. But this case threatened to make it nearly impossible. The company in this case was asking the Court to rule that a defendant can terminate a class-action suit against it simply by making a settlement offer to the individual representing the class, even if it’s not accepted, before that individual files a motion for class certification with the court. The argument was that offering the settlement would mean there was no longer a “case or controversy,” which Article III of the Constitution requires for a federal court to have jurisdiction in a case.

In a somewhat surprising win for ordinary people, the Court rejected the argument by a vote of 6-3. Writing for a 5-member majority (the moderates plus Justice Kennedy), Justice Ginsburg concluded that if the plaintiff rejects the offered settlement, the case does not automatically terminate. She noted that ruling otherwise would improperly let corporations spend minimal amounts to pay off individual plaintiffs and forestall all sorts of class actions. (Justice Thomas provided the sixth vote in a concurrence that used a very different legal approach to reach the same result.)

However, the Court announced a potential loophole for corporations: The Court noted that it was not deciding whether a corporation could prevent a class action suit by placing the full amount of the plaintiff’s individual claim in an account payable to the plaintiff (rather than just making an offer), and then having the court enter a judgment in favor of the plaintiff in that amount and dismissing the case before the plaintiff has a chance to ask the judge to certify the proposed class. We can be confident that such a case will reach the Court soon, making it critically important who fills Justice Scalia’s vacancy, as well as others that may open in the near future.

Sabotaging the Next Term

When Justice Scalia passed away in February, Senate Majority Leader Mitch McConnell immediately announced that the Senate would not consider any nominee put forth by President Obama, no matter who it might be. Nevertheless, true to his constitutional responsibilities, the president nominated Chief Judge Merrick Garland of the D.C. Circuit to fill the vacancy on the Supreme Court. More than 100 days later – long past the point when other nominees would have had their confirmation votes – Judge Garland is still being denied a hearing, and Senate Republicans are holding the seat open in the hopes that a President Donald Trump will fill it.

Under the conservatives’ plan, the Senate will not consider anyone until the next president makes the nomination … a president who will take office when the Court’s 2016-2017 Term is already half over. A final confirmation vote would be many weeks later, at the very least. Faced with the prospect of having most or even all of next term hobbled by a needlessly ongoing vacancy, the justices are responding, clearly aware of the damage to the Court’s ability to properly function. This shows up in the number and types of cases the justices are hearing next year. The Court continues to lag behind previous years at this same point in the number of cases that they have accepted for next term, which is now fewer than 30. In addition, most of the cases are not blockbusters; one important constitutional religious liberty case has been accepted, but that was before Justice Scalia passed away.

This term, the Court was unable to address a number of very important legal questions affecting millions of people across America. Next term, it may not even try, if the obstruction in the Senate continues.

 

The Supreme Court Conflict Shines a Light
on the Massive Obstruction of Lower Court Nominees

The very high-profile obstruction of Supreme Court nominee Merrick Garland is just the most visible and most extreme version of a pattern of obstruction that Senate Republicans have been doing to sabotage the judicial confirmation process throughout the entire federal judiciary.

 On the circuit and district courts, the Republican-controlled Senate is virtually abandoning its constitutional duty to consider President Obama’s judicial nominees. After confirming only 11 circuit and district court judges last year (the lowest since 1960, the end of the Eisenhower era), the Senate has confirmed only an additional 8 so far this year, for a total of 19 circuit and district judges confirmed during this Congress. Indeed, the 114th Congress is on pace to see the fewest confirmation votes of any two-year Congress in over 50 years.

But it's not because there aren't any vacancies. In fact, current circuit and district vacancies have skyrocketed since the current Congress began in January, from 40 then to 80 now. The number of those vacancies that have been officially designated judicial emergencies has jumped from 12 at the beginning of 2015 to 29 today.

Nor is it because there is a lack of nominees. Far from it. As of today, there are a total of 50 nominees awaiting consideration by the Senate, Of these 32 are still in the Senate Judiciary Committee, only 7 of whom have had hearings. And another 18 nominees have cleared the Judiciary Committee and now await votes on the Senate floor. Five of these have been waiting since last year for votes.

Just as it matters immensely who serves on the Supreme Court – and who nominates those justices – it matters who serves on our nation’s circuit and district courts as well. All these positions have an enormous impact on the lives of people across the country, which is exactly why the Senate leadership, with the full support of far right activists, have put so much effort into derailing indisputably qualified nominees to the federal judiciary at all levels.

Conclusion

Since Justice Scalia’s passing, people across America have seen the damage caused by an extended vacancy on a Court that has been left evenly divided ideologically. Among those who have witnessed the damage are all 100 members of the United States Senate, whose Republican leaders are nevertheless refusing to even hold a hearing for an unquestionably qualified nominee who should have already had a confirmation vote by now. Had the Senate acted in a timely manner, and if they had voted to confirm Judge Merrick, the Court would be fully staffed by now, perhaps having avoided some of its 4-4 rulings and confident in its ability to take new cases and begin the next term at full strength.

Instead, unless the Republican Senate leadership abandons its unprecedented obstruction, they will be deliberately preventing the Supreme Court from functioning effectively for most if not all of next term as well. This deliberate sabotage of the American judicial system from the Supreme Court on down harms everyone.

Five Right-Wing Predictions About Marriage Equality That Still Haven't Come True

Sunday marked the first anniversary of the Supreme Court’s landmark marriage equality decision, which, if Religious Right activists were to be believed, was to usher in a horrible tyranny that would lead to mass deaths and war.

Of course, the Right’s doomsday predictions about what would happen if same-sex marriage became legal nationwide were totally unfounded, and only a tiny contingent of conservativescame to a protest the ruling in Washington, D.C., this weekend.

While the conservative movement certainly hasn’t given up on the fight against LGBT rights and is thrilled by Donald Trump’spromise to appoint anti-LGBT judges who would oppose the marriage ruling, many activists have once again shown that they are more interested in stirring up fears about the LGBT community than in the facts.

Here are just five of the craziest predictions that conservative politicians and pundits made about Obergefell v. Hodges, all of which are yet to come true.

1) War’s A-Brewin’

Many “mainstream” Religious Right leaders said that if the Supreme Court were to strike down state bans on same-sex marriage, Americans should prepare for a revolution.

Family Research Council President Tony Perkins, for example, said there would be an anti-gay “revolution” that would “just break this nation apart” if marriage bans were overturned, warning that such a ruling would “literally split this nation in two and create such political and cultural turmoil that I’m not sure we could recover from it.”

Mat Staver and Matt Barber of the Religious Right legal group Liberty Counsel made similar statements, with Barber declaring that “revolution is at hand” and Staver claiming that there would be a “new American Revolution” resisting marriage equality. Former House GOP Leader Tom DeLay insisted that “all hell” was “going to break loose” if the court sided with LGBT activists on marriage.

“We’ve got to fight to our deaths to save this great country,” said Cliff Kincaid of the conservative group Accuracy In Media, while Vision America’s Rick Scarborough vowed that he was willing to “burn” in defiance of gay marriage, which he said would “unleash the spirit of hell on the nation.”

One year later, no anti-gay revolution has occurred and Rick Scarborough has not self-immolated.

2) Secession

Just before the ruling, WorldNetDaily editor Joseph Farah called on governors “to secede” from the union in order “to offer a refuge” for the “millions of Americans” who he believed would flee the country as a result of marriage equality. “The rewards could be great. I would certainly consider relocating. How about you?” he asked. “If not a state, are there any nations in the world interested in a pilgrimage by millions of Americans?”

Focus on the Family founder James Dobson warned that the U.S. could witness a second civil war over a same-sex marriage decision and televangelist Rick Joyner predicted that the court would “start an unraveling where our country fractures like it hasn’t since the Civil War.”

Self-proclaimed prophet Cindy Jacobs, for her part, said that she and other “prophets” had heard from God about a great “conservative revolt” and a “War between the States” that would take place as states threatened to secede to preserve “biblical marriage”.

Conservative activist Alan Keyes said the ruling amounted to “a just cause for war” and was “likely to produce the separation and dissolution of the United States,” while one author, former Reagan aide Douglas MacKinnon, called on a group of Southern states to form a new country called Reagan that would not tolerate gay rights.

We are still waiting for such a brave governor to threaten secession.

3) God’s Punishment

Gay marriage would lead to a divine reckoning, many conservative pundits predicted, possibly in the form of a global financial crash, a nuclear electromagnetic pulse attack or “a fireball from space.”

“It is just a question of how soon the wrath of God is going to come on this land,” televangelist Pat Robertson warned. Florida-based pastor Carl Gallups, now a staunch Donald Trump ally, maintained that “this ruling may prove to be the final death knell of divine judgment upon our once great nation.”

Radio host Rick Wiles predicted that “God will cut off America’s food supply and this nation will be hit with disease, pestilence, drought, natural calamities and a great shaking” and urged people to flee the country.

End Times author Jonathan Cahn even wondered if God would use Hurricane Joaquin to damage Washington, D.C., as a sign of his displeasure with the same-sex marriage decision.

The hurricane, in the end, did not hit D.C.

4) Pedophilia

Following the passage of the 2009 law that expanded hate crime protections to LGBT people, many right-wing politicians and analysts falsely claimed that the act legalized pedophilia. Of course, it did nothing of the sort and child abuse is still a crime.

Many of these same people claimed years later that the Obergefell ruling would also legalize pedophilia, which, obviously, it did not do.

Robertson said the ruling would turn pedophilia into a “constitutional right” and permit “relationships with children ” (along with “love affairs between men and animals”).

DeLay warned that the ruling would pave the way for a secret government plan to legalize “12 new perversions, things like bestiality, polygamy [and] having sex with little boys.” Ben Carson, then a GOP candidate for president, suggested that NAMBLA would benefit from the ruling.

5) Outlawing Religious Belief

Predictions about the government throwing pastors in jail, outlawing the Bible, and even murdering Christians came flooding in after the Obergefell decision.

Mike Huckabee said that America was witnessing “the criminalization of Christianity” and that any pastor who didn’t want to officiate a wedding for a same-sex couple would be liable to face criminal charges :

If the courts rule that people have a civil right not only to be a homosexual but a civil right to have a homosexual marriage, then a homosexual couple coming to a pastor who believes in biblical marriage who says ‘I can’t perform that wedding’ will now be breaking the law. It’s not just saying, ‘I’m sorry you have a preference.’ No, you will be breaking the law subject to civil for sure and possible criminal penalties for violating the law…. If you do practice biblical convictions and you carry them out and you do what you’ve been led by the spirit of God to do, your behavior will be criminal.

No pastor has been arrested for refusing to officiate a same-sex couple’s wedding, reading from the Bible or preaching against homosexuality, all things that conservatives predicted would happen.

Some right-wing pundits even thought that the ruling would lead to forced gay relationships and parents losing custody of their children.

Many pundits, however, have wrongly used the case of Kim Davis to claim that their fears were realized.

Davis, a Kentucky county clerk, was temporarily incarcerated by a federal judge when she refused to abide by court orders which found that she was unlawfully denying same-sex couples marriage licenses. Davis, who boasted that she was defying the Supreme Court decision and subsequent rulings because she was working under “ God’s authority ,” was released after deputy clerks in the county office agreed to issue marriage licenses to same-sex couples.

Davis was not incarcerated because of her religious objections but because, in her role as a government employee, she clearly defied the rule of law. She was not attempting to exercise her religious freedom as a private citizen but was trying to impose her personal religious beliefs on the functions of government, and make all the people in her jurisdiction abide by her faith.

As Janet Porter warned in her anti-gay film, “Light Wins,” “our freedoms are on fire.”

PFAW Foundation Statement on DACA+/DAPA Case

In response to the Supreme Court’s 4-4 tie in DACA+/DAPA, which leaves in place a nationwide injunction against these programs, Catalina Velasquez, the director of People For the American Way Foundation’s Young People For leadership program, released the following statement:

“Today the Supreme Court failed to protect millions of people in our country from deportation. Family separation is abhorrent, and it goes against our core values as a society, ripping families apart just because of their immigration status.

“As a transgender, undocumented immigrant from Colombia whose family was deported my first semester at Georgetown University, I know just how critical programs like these can be for a person’s personal safety and how harrowing the effects of mass deportation can be for our community. It’s profoundly upsetting that the Supreme Court today will allow the deportation of millions of people. And it is disheartening that an administrative policy like this one aimed simply at facilitating the right to provide for ourselves is still a contested issue.

“Today’s decision affects almost half of the 11.2 million undocumented immigrants who would have benefited from the short term relief from deportation these plans offered. At Young People For, we will continue to advocate for  the case to be reargued, and stand with young undocumented people and their families in support of immigration reform, so immigrants are treated with the dignity and respect we deserve.”

Catalina Velasquez will be available for interviews in English or Spanish. To schedule an interview, please call 202-467-4999.

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PFAW Foundation Applauds Supreme Court Ruling in Fisher v. University of Texas at Austin

In a 4-3 decision today, the Supreme Court upheld the University of Texas at Austin’s equal opportunity admissions policy.

“The Court’s Fisher decision today is an important win for the Constitution, for students, and for all Americans,” said Michael Keegan, president of People For the American Way Foundation. “By upholding the admissions policy at the University of Texas, the Court made clear that programs designed to further equal opportunity serve a critical role in addressing the racism that continues to permeate our country. Students from all backgrounds deserve a fair shot in our education system.

“From universities to the workplace, diversity policies are among the many needed programs to combat structural racism and strive towards equal opportunity for every American.”

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.

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Young Elected Officials Network Statement on Orlando Shooting

In the wake of the deadliest mass shooting in our country’s history in Orlando this weekend, People For the American Way Foundation’s Young Elected Officials (YEO) Network released the following statement:

“Our hearts are extremely heavy today. Everyone in the YEO Network is thinking of the victims of this horrific attack, their friends and loved ones, and LGBTQ communities in Orlando and across the state and country.

“We also know that out of this heartbreak must come real change. It is not inevitable that weapons of war, like the assault-style rifles used in Orlando, San Bernardino, Aurora, and Newtown, are within easy reach. We can no longer allow pro-gun extremists to set our political agenda; we have to stand up for common-sense gun violence prevention measures. As the president noted on Sunday, to ‘actively do nothing’ in response to this horrific violence is a choice. But it’s not a choice we are willing to make.

“As elected leaders, it is our responsibility to do all we can to serve, represent, and keep safe members of our communities. The fact that this attack was targeted specifically at LGBTQ people is a sobering reminder of the moral imperative to stand up against bigotry in all of its forms. We stand against the hate that divides us, whether its target is the LGBTQ community, the Muslim faith, Black lives, or women’s agency. Today we redouble our resolve to fight for a country where – whether in a bar or at a church or in a workplace – no one has to fear for their life or their safety.”

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'We Are Living The Milgrim Experiment': Glenn Beck Blames Obama For Nasty Facebook Comments

On his radio program today, Glenn Beck declared that "we are right now living the Milgrim Experiment" and, of course, it is all President Obama's fault.

Beck was referencing the famous series of social psychology experiments done at Yale University back in the 1960s, which found that many people were willing to inflict increasingly painful punishments upon a subject simply because they were ordered to do so by someone in authority.

Today, the comments being left on Facebook show that this mentality has overtaken our entire society, Beck said, and it can all be traced directly back to Obama.

"Barack Obama, Hillary Clinton, Donald Trump, they're all, in their own ways, hammering people who disagree with them," Beck stated. "So they are setting for an example for both the left and the right, it's okay to be vile, it's okay to be uncivil. How are we living the experiment? Have you read Facebook lately? Have you read the comments section lately?"

"I contend, if you read Facebook, if you read anything, you read any comments right now, we are living the Milgrim Experiment," he continued. "We are living in a time where people will say, 'It's okay you do that.' And people in authority — Barack Obama is the first one, he's the first president; if you remember, even George Bush treated Cindy Sheehan with respect, she didn't treat him with respect but he treated her with respect. Surrogates might have said things, but the president did not, the president did not. Barack Obama was the first to say, 'You're walking around with your little tea bags.' That was the beginning of the Milgrim Experiment. Somebody in authority was saying it's okay to bash them."

Remembering Courageous Activist Muhammad Ali

Boxing legend Muhammad Ali died this weekend at the age of 74. In addition to being an extraordinary athlete -- 'The Greatest of All Time' -- Ali was also a courageous activist who publicly challenged racism throughout his life. 

Ali was also a friend of People For the American Way. In 1981, PFAW founder Norman Lear and director Jonathan Demme created a series of PSAs to emphasize that the right to freely express opinions was a critical piece of the American way.

The spots end with the tagline: "Freedom of thought. The right to have and express your own opinions. That's the American Way." Ali appeared in two of them, below. We're proud that Muhammad Ali was a part of our organization's history, and we're proud to honor his legacy with our ongoing work to fight bigotry and protect our basic rights. 

PFAW Foundation

Harming Justice: Effects of an Eight-Justice Supreme Court

To: Interested Parties
From: People For the American Way Foundation, Constitutional Accountability Center
Date: June 2, 2016
Re: Harming Justice: Effects of an Eight-Justice Supreme Court

The Supreme Court is about to embark on the most consequential portion of its Term: handing down decisions on some of the biggest questions facing the country today, questions ranging from immigration to abortion to affirmative action. It will be tackling those questions without a full complement of justices.  Justice Antonin Scalia died in February, leaving only eight members on the Supreme Court. Since Justice Scalia’s death, President Obama followed his constitutional duty and duly nominated the highly qualified and impeccably credentialed Judge Merrick Garland to fill the vacancy on the Court. However, conservative Senators have refused to do the jobs the people of their state sent them to Washington to do. The previous four Justices named to the Court waited an average of 74 days from nomination to confirmation; Judge Garland passed that mark on May 28 and has yet to be even given a hearing by the Chairman of the Judiciary Committee Chuck Grassley.

Having only eight Justices on the Supreme Court for a prolonged period of time diminishes the Court, diminishes the country, and diminishes the rule of law. With only eight justices, all too often the Supreme Court cannot do the job the Framers of the Constitution assigned to it.

The diminishing effects of an eight-Justice Court include:

  • A 4-4 divided opinion means that major national questions go unresolved, as an equally divided Court cannot set a binding, uniform, nationwide rule of law. Different federal legal rules can apply to different people and businesses right across state lines. The Court has already handed down a number of 4-4 divided opinions; as of June 1, 2016, there are still 25 cases awaiting decision by the Court.
    • For instance, the Supreme Court has already divided 4-4 in Hawkins v. Community Bank of Raymore. Now one set of rules about whether spouses are required to guarantee loans applies in some jurisdictions, and another set in others.
    • The Justices themselves have repeatedly made clear that providing a uniform rule of law is one of the most important functions of the Supreme Court. From Chief Justice Roberts to Justice Ruth Bader Ginsburg, the members of the Court have consistently affirmed this principle.
    • Some of the biggest, most important questions are frequently the most divisive and have the greatest potential to divide the Justices 4-4, especially at a time when the number of 5-4 splits is at an historic high.
  • In order to avoid a 4-4 split, the Supreme Court has already had to make unusual moves, punting on important legal questions because there is not a fully-staffed bench that can resolve these questions. Thus, even when the Court doesn’t split 4-4, it may still be unable to truly resolve the important questions before it, thus leaving legal uncertainty in place.
    • Rather than issue an opinion on the merits, the Supreme Court issued an unsigned order in Zubik v. Burwell, a case involving the accommodation granted to religious nonprofits that object to the ACA’s contraceptive mandate. The order vacated the decisions of the lower courts and remanded the issue  back to the lower courts to try to achieve a compromise,  thus leaving the central question unresolved, thousands of women around the country in limbo, and a strong possibility that the Court will have to revisit the question again once it is fully staffed. Given the time it takes for issues to work their way through the federal courts, it could be years before the issue is resolved.
  • The Supreme Court may also be less inclined to tackle tough questions in the first place if its members think they cannot avoid dividing 4-4 on a question. The Court already has a small docket, only hearing approximately 70-80 cases a Term; the pace of grants of review in cases the Court has decided to hear for next Term is well below the average for this point in the year.

The effects of an eight-Justice Court ripple far outside of Washington, DC. Millions of American lives are impacted by the decisions the Court makes – or doesn’t make. The sooner Senators set aside partisanship in favor of doing their jobs, the better off the Court and the country will be. For more information on the effects of an eight-member Court, please see the report Material Harm to Our Justice System: The Consequences of an Eight-Member Supreme Court.

Resources

Material Harm to Our Justice System: The Consequences of an Eight-Member Supreme Court

Everything You Need to Know About an Eight Justice Supreme Court

The Originalist Case for the Senate to Do Its Job

The Supreme Court’s Role in Our Constitutional Scheme: Why Eight is Not Enough

Justice Waits for a Nine Member Supreme Court

Ruth Bader Ginsburg: 8 Is Not a Good Number

Supreme Court Punts in Zubik Case – and Shows Again the Crucial Importance of a Fully-Staffed Supreme Court

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The Movers Behind The Anti-LGBT 'Religious Liberty' Movement

This post originally appeared on Right Wing Watch.

In the first few months of this year, for the second year in a row, more than 100 anti-LGBT bills have been introduced in state legislatures, many of them promoted under the banner of protecting religious liberty.  A new report by People For the American Way Foundation, “Who is Weaponizing Religious Liberty?,” explains that “it takes a right-wing village to turn a cherished American principle into a destructive culture-war weapon.”

The report makes clear that the wave of anti-equality legislation promoted in the name of religious liberty is not an outgrowth of local conflicts but the latest step in a long-term campaign by national Religious Right legal and political groups to resist legal equality for LGBT people. As Americans have come to know and embrace their LGBT family members and friends, harsh anti-gay rhetoric has become less effective, says the report, leading social conservatives to try to reclaim the moral and political high ground by reframing debates over marriage equality and nondiscrimination protections as questions of religious liberty.

These efforts are being promoted by “a network of national Religious Right organizations that oppose legal recognition for the rights of LGBT people,” notes the report, which profiles some of the leading organizations while noting that they “represent the tip of the iceberg of a much larger movement that is trying to eliminate legal access to abortion and roll back legal protections for LGBT people, couples, and families — and trying to do so in the name of religious liberty.”

The groups covered in the report include:

·         Family Research Council and FRC Action

·         Heritage Foundation and Heritage Action

·         National Organization for Marriage

·         Alliance Defending Freedom

·         Liberty Counsel

·         American Family Association

·         Becket Fund for Religious Liberty

·         American Principles Project

The report includes links to additional resources on the organizations behind the Right’s use of religious liberty as political strategy for resisting equality. 

PFAW Foundation

The Movers Behind The Anti-LGBT 'Religious Liberty' Movement

In the first few months of this year, for the second year in a row, more than 100 anti-LGBT bills have been introduced in state legislatures, many of them promoted under the banner of protecting religious liberty.  A new report by People For the American Way Foundation, “Who is Weaponizing Religious Liberty?,” explains that “it takes a right-wing village to turn a cherished American principle into a destructive culture-war weapon.”

The report makes clear that the wave of anti-equality legislation promoted in the name of religious liberty is not an outgrowth of local conflicts but the latest step in a long-term campaign by national Religious Right legal and political groups to resist legal equality for LGBT people. As Americans have come to know and embrace their LGBT family members and friends, harsh anti-gay rhetoric has become less effective, says the report, leading social conservatives to try to reclaim the moral and political high ground by reframing debates over marriage equality and nondiscrimination protections as questions of religious liberty.

These efforts are being promoted by “a network of national Religious Right organizations that oppose legal recognition for the rights of LGBT people,” notes the report, which profiles some of the leading organizations while noting that they “represent the tip of the iceberg of a much larger movement that is trying to eliminate legal access to abortion and roll back legal protections for LGBT people, couples, and families — and trying to do so in the name of religious liberty.”

The groups covered in the report include:

·         Family Research Council and FRC Action

·         Heritage Foundation and Heritage Action

·         National Organization for Marriage

·         Alliance Defending Freedom

·         Liberty Counsel

·         American Family Association

·         Becket Fund for Religious Liberty

·         American Principles Project

The report includes links to additional resources on the organizations behind the Right’s use of religious liberty as political strategy for resisting equality. 

New Report Details the Religious Right Groups Weaponizing Religious Liberty

Today, People For the American Way Foundation (PFAW Foundation) released a new report analyzing the Religious Right groups that are co-opting the American principle of “religious liberty” to drive anti-LGBT legislation across the country. The report, “Who Is Weaponizing Religious Liberty? It Takes a Right-Wing Village to Turn a Cherished American Principle Into a Destructive Culture-War Weapon,” details the efforts of key groups including the Family Research Council and FRC Action, Heritage Foundation and Heritage Action, the National Organization for Marriage, the Alliance Defending Freedom, Liberty Counsel, the American Family Association, the Becket Fund, and the American Principles Project.

PFAW Foundation President Michael Keegan stated:

“The discriminatory and unconstitutional anti-LGBT laws that we’re seeing across the country aren’t emerging organically; they’re part of a deliberate strategy to attack LGBT people. This report shows how national Religious Right groups are driving this state-by-state campaign, and they’re undermining real religious liberty in the process.” 

The report explains:

“[The] flood of anti-LGBT and ‘religious liberty’ legislation is not the result of isolated local efforts. It is part of a larger campaign by Religious Right groups to resist and reverse advances toward equality for LGBT Americans by portraying equality as inherently incompatible with religious freedom.

“Together these organizations constitute a powerful cultural and political force that will not disappear after a few losses in the courtroom or at the ballot box. Indeed, in the wake of their marriage equality defeat at the U.S. Supreme Court in 2015, they have redoubled their efforts. They are eagerly creating folk heroes out of public officials and business owners who refuse to provide services to same-sex couples. And they are pushing Republican officials to enact legislation at federal as well as state levels that would further weaponize religious liberty, turning it from a shield meant to protect individual religious practice into a sword to be wielded against individuals and groups disfavored by Religious Right leaders.”

As the report notes, opposition to reproductive choice and the contraception coverage requirement under the Affordable Care Act are also part of social conservatives’ “religious liberty” strategy.

You can read the report here. For questions, or to schedule an interview with an expert on the issues discussed in this report, please email media@pfaw.org.

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.

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Who Is Weaponizing Religious Liberty?

It takes a right-wing village to turn a cherished American principle into a destructive culture-war weapon.

Virginia Rev. Gregory King, Sr. Statement on Supreme Court’s Decision in Wittman v. Personhuballah

In response to the Supreme Court’s decision to dismiss the challenge to a lower court’s ruling that rejected racial gerrymandering, Virginia Rev. Gregory King, Sr., a pastor at Russell Temple Christian Methodist Episcopal Church and a member of People For the American Way Foundation’s African American Ministers Leadership Council, released the following the statement:

“Yesterday, the Supreme Court unanimously dismissed the challenge to a lower court’s decision against partisan gerrymandering, thus ensuring that the right to vote of African Americans in Virginia is equal to all others in the state. This was not the first and certainly will not be the last time we fight against racial discrimination at the ballot box, and I’m thankful that the Supreme Court did the right thing by leaving in place the lower court’s decision to protect our voting rights.”

People For the American Way Foundation’s African American Ministers Leadership Council represents an ecumenical alliance of 1,500 African-American clergy working toward equality, justice and opportunity for all. 

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