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Scalia and Roberts Don’t Know Best: Here’s How We Take Our Politics Back from Reactionary Court and Billionaire Donors

This piece, by PFAW Senior Fellow Jamie Raskin, was originally published by Salon.

If you take away Prohibition (the 18th Amendment) and its repeal (the 21st), most of our constitutional amendments since the original Bill of Rights have expanded the voting rights and political equality of the people.

Our post-Reconstruction amendments have abolished slavery (the 13th), provided for equal protection of the laws and required reduction of states’ congressional delegations if they disenfranchise eligible voters (the 14th), denied states the power to discriminate in voting based on race (the 15th) and shifted the mode of election of U.S. Senators from the legislatures to the people (the 17th). They have passed woman suffrage (the 19th), given residents of the federal district the right to vote and participate in presidential elections by casting electors (the 23rd), abolished poll taxes in federal elections (the 24th) and lowered the voting age to 18 (the 26th).

Moreover, many of these amendments have directly responded to Supreme Court decisionsdenying the political rights of the people.  For example, the 19th Amendment overturned the Court’s decision in Minor v. Happersett (1875), which held that Equal Protection did not protect the right of women to vote, affirming precedents finding that women’s proper place is in the domestic sphere.  Similarly, the 24th Amendment banning poll taxes in federal elections overturned the Court’s 1937 decision in Breedlove v. Suttles upholding such taxes.

But if you listened only to some of my colleagues in the legal establishment, you might never know that our unfolding Bill of Rights is a dynamic chronicle of the democratic struggles of the people for participatory political equality nor would you know that the people have often had to override reactionary decisions of the Supreme Court in the process.

A lot of lawyers today react with horror to U.S. Reps. Marc Pocan and Keith Ellison’s excellent push for a constitutional amendment to establish an affirmative and universal right to vote against recurring state efforts to disenfranchise people.  And a lot of academics were aghast last summer when every Democratic United States senator supported a constitutional amendment to reverse Citizens United, McCutcheon v. FEC (2014) and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011).

The amendment, backed by the vast majority of Americans and a surging national campaign that 16 states and more than 650 cities and towns have joined, would restore the people’s power to stop CEOs from spending corporate treasury wealth on political races, to impose reasonable campaign finance limits such as caps on aggregate contributions, and to develop public financing laws with matching grants that help empower poorer candidates to be heard over the roar of big money.

Yet we are constantly invited to believe that, however much big money comes to dominate our politics and control public policy, we must never touch our Constitution. It must be hidden away in the attic where it will be tended by wise Supreme Court justices and law professors who know that the people’s constitutional values will always be inferior to those of the judiciary and the experts.  This attitude betrays our progressive democratic heritage and Thomas Jefferson’s important warning:

Some men look at constitutions with sanctimonious reverence, and deem them like the arc [sic] of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment . . . . But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.

The country’s most prolific voting rights scholar and blogger, Richard Hasen—a colleague and friend of mine—is the most recent legal academic to pour cold water all over the movement for a constitutional amendment to rebuild the statutory wall protecting democratic elections from the flood of plutocratic and corporate wealth.  This is the wall that has been mostly demolished by the Roberts Court in both Citizens United and the McCutcheon decision.

While Citizens United turned every corporate treasury in the country into a potential political slush fund, McCutcheon wiped out all aggregate limits on federal campaign contributions so that tycoons can now max out to every incumbent Member of Congress–plus all their opponents!  The top half of the top 1 percent can now pretty much bankroll all federal campaigns, which is one reason why run-of-the-mill Republican millionaires and bundlers are complaining to the Washington Post that they have been bypassed in the nation’s wealth primary by “multi-multimillionaires and billionaires.” The bottom half of the top 1 percent is getting a sense of what it is like to be a political spectator in the country’s exclusionary wealth primary.

The Post also reports that public anxiety about plutocracy is becoming a key issue in the presidential election—not just among Democratic activists for whom it is “red meat,” according to Professor Hasen, but for Republicans and Independents too—pretty much everyone who lacks the strategic advantages of Sheldon Adelson and the Koch brothers. Earlier this month, Republican Sen. Lindsey Graham also pointed to the need for a constitutional amendment to fix the damage done by Citizens United.  Indeed, if you don’t think the accelerating takeover of our politics by big money affects public policy in the real world, you may or may not be an academic, but you are definitely too innocent to be let out of the house by yourself.

In launching her 2016 campaign, Democratic presidential candidate Hillary Clinton declared a “big fight” to fix “our dysfunctional political system” by getting “unaccountable money out of it once and for all, even if it takes a constitutional amendment,” and I say good for her. Given Clinton’s legislative and political experience and her own prodigious navigation of our money politics, she obviously knows how the Roberts Court’s magical transformation of for-profit business corporations into political membership groups has completely distorted politics in the Citizens United era.  Of course, some of the Republican presidential candidates are charging her with hypocrisy for seeking to change the plutocratic political system that shapes her campaign, along with everyone else’s, and sullies everyone who touches it.  But this is predictable and pedestrian.  The nihilistic enemies of reform prefer nothing systemic to change just so long as they can keep denouncing Hillary Clinton.

Thankfully there is no talk of hypocrisy in Hasen’s critique, but still all Clinton gets from him is a lot of negative energy.  First, he faults her for not trying to fix “the nation’s disclosure laws,”  which is strange because she supported the Disclose Act, which U.S. Rep. Chris Van Hollen introduced and which Republicans killed, and she has always championed disclosure.  It is also strange because Clinton is clearly treating a constitutional amendment as a last resort in a struggle against a runaway faction of five plutocrats on the Supreme Court.  If I am reading her correctly, Clinton wants unaccountable corporate money—which is now spent by CEOs in our political campaigns on a secret basis and without any consumer, shareholder or citizen control over it—to be subject to public regulation “even if it takes” a constitutional amendment. That doesn’t sound so reckless to me.

For Hasen, it seems sufficient to work for years or decades to mandate disclosure of the billions of dollars in corporate money coursing through the veins of the body politic, and then leave things at that.  He is afraid that actually restoring the power of Congress to impose “reasonable” and viewpoint-neutral limits on corporate political expenditures would be subject to an effective judicial veto through reinterpretation by “a conservative majority on the Roberts Court” and therefore useless.  Well, it is also the case that the addition of the words “equal protection” to the Constitution were effectively nullified through reinterpretation by a Jim Crow Supreme Court between Plessy v. Ferguson (1896) and Brown v. Board of Education(1954).  But does that make passage of the Fourteenth Amendment a bad idea?  The Supreme Court has been a conservative and reactionary institution for most of our history, but that is precisely the reason for the people to write our Constitution in a way that advances and protects strong democracy. Having the right constitutional language in place may not be sufficient to constrain the reactionary elitism of the Supreme Court, but it is certainly necessary.

If we just wait around for new justices to change things and fail to directly engage this constitutional question in the public arena, we can expect to see the few remaining bricks of campaign finance law flattened by the Right and the Court, including base limits on individual  contributions, the Tillman Act’s century-old ban on corporate contributions to federal candidates, the rules against “coordinated expenditures” between candidates and independent spenders, and the limits in 29 states on making campaign contributions during legislative sessions–all of them clearly at odds with the absolutist dogmas of the Right: that political money is political speech, that business corporations are First Amendment-protected political (and religious!) associations, and that the only kind of political corruption we can acknowledge and regulate are quid pro quo transfers tantamount to bribery.

But Hasen, finally, calls a constitutional amendment a “political nonstarter” because of the difficulties of passage.  But here he ignores not only the success that popular movements have had in inscribing democratic values in the Constitution throughout our history, but also the way that serious constitutional movements can reshape the terrain of American politics with or without final passage and ratification.  For example, the heroic movement for the Equal Rights Amendment in the 1970s not only led to widespread adoption of state constitutional amendments and significant federal statutory changes advancing the equal rights of women but also helped shock the Supreme Court into action to apply “heightened scrutiny” to official gender-based discrimination under Equal Protection doctrine.  Constitutional movements can change the mind of the Court.

Whether or not we summon up the two-thirds of Congress and three-fourths of the states needed to pass a strong new anti-plutocracy amendment, the movement for such an amendment is essential to change the degraded assumptions of the Citizens United era.  It will open up space for revival of the Disclose Act, for consideration of the “Shareholders United” legislation that I and other legislators have been advancing at the state level, for progress for small-donor plans like Congressman John Sarbanes’ Government By the People Act, and for an honest debate about Citizens United, which turned on its head two centuries of conservative understanding of what a corporation is.

Even if the best we can hope for is some modest new disclosure rules and a few new Supreme Court justices who tilt towards democracy over plutocracy, as Hasen advises Hillary Clinton, these outcomes are far more plausible and likely with a lively popular constitutional movement on the ground than the defeatist attitude that the Supreme Court always knows best.

PFAW

Pat Robertson: Forgive Husband's Gay Affair Unless He's A 'Habitual Homosexual'

Today on “The 700 Club,” Pat Robertson told a viewer to forgive her husband of 11 years who cheated on her with a male friend from church. The viewer explained that her husband said he was drunk and that the affair was a mistake, and she asked Robertson for advice on how to handle the situation.

“Well, hey, drunk, he didn’t know what he was dealing with,” Robertson said. “She says, ‘Should I forgive?’ Of course you should. If he were this way all the time, if he’s a habitual drunk, if he’s a habitual homosexual, if he’s a habitual philanderer, then by all means take a hike. But one time, 11 years, don’t throw all of that away.”

Pat Robertson: God Can 'Straighten Out' Your Gay Daughter At Summer Camp

When a “700 Club” viewer asked Pat Robertson today how she can convince her daughter, who recently introduced her to her girlfriend, to “give up the LGBT lifestyle,” the televangelist told the viewer to “pray that God will straighten her out” because it may be a phase she’s going through.”

“A little teenage girl doesn’t know what dress she’s supposed to wear much less what kind of sex she’s supposed to be,” he said, seemingly confusing sexual orientation with gender identity.

Robertson then lamented the purported “pressure” to be gay: “There’s so much lesbian stuff, I mean, lesbian this, lesbian the other, so much homosexual — the media is pushing this as hard as they can possibly push it. I don’t know what to do, maybe get her in a camp, a Christian camp in the summer where they are really on fire for the Lord and maybe she will straighten things out.”

Tony Perkins Just Lies On 'Face The Nation,' Insists He Never Called For SCOTUS Impeachment

Time and time again, conservative figures have one message for right-wing media outlets and a completely different one for the mainstream press. Tony Perkins, the Family Research Council president, gave us the latest example of this phenomenon during an appearance on “Face the Nation” this Sunday to discuss the upcoming Supreme Court marriage case.

Last week, as we first reported here on Right Wing Watch, Perkins told conservative Iowa radio host Jan Mickelson that a Supreme Court ruling in favor of gay marriage rights would lead to “open season on people of faith" and agreed with Mickelson's suggestion that Supreme Court justices who vote in favor of marriage equality be impeached.

But when Schieffer asked Perkins about those comments on Sunday, he had a very different answer, flatly denying that he had ever called for the impeachment of justices who favor marriage equality.

Via RawStory:

Unfortunately for Perkins, we have the audio of him saying exactly that.

After Mickelson went on a rant about how Congress should attempt to strip the court of its jurisdiction on marriage and “impeach [their] sorry keisters,” Perkins responded: “I don’t disagree with you, I think you are absolutely right.”

In fact, Perkins has also predicted that there will be a full-scale revolution if the Supreme Court strikes down bans on same-sex marriage.

Montana Activists Clinch a Victory Against Big Money in Politics

Last week, Montana Governor Steve Bullock signed into law a sweeping campaign finance reform bill that represents a major bipartisan victory in the movement to get big money out of politics.

SB289 – the Montana Disclose Act – will require dark money groups to report their spending on state political races. The bill is a much-needed update to Montana’s campaign laws, and will help provide Montana voters with more information on the groups behind the political attack ads they see every election cycle.

During the state legislature’s debates on SB289, Montana PFAW members and other local activists lobbied their representatives, calling state representatives and urging them to support  greater transparency in Montana’s politics. While signing the bill, Gov. Bullock announced that the state finally has a law “that mandates that every penny spent in our elections will be disclosed.”  

“When it comes to Montanans as individuals having control of our elections, this is the most significant day in the last 112 years since Montanans passed the Corrupt Practices Act,” said Bullock.

SB289 passed with bipartisan support in both the State House and Senate. Montana’s victory is yet another indicator that big money’s threat to our democracy transcends party affiliation – and that money in politics is really only a partisan issue in Washington, DC.

PFAW

Marco Rubio: 'Ridiculous And Absurd' To Believe Gays Have Constitutional Right To Marry

While his campaign touts his outreach to gay Republicans, Florida Sen. Marco Rubio told David Brody of the Christian Broadcasting Network this weekend that anyone who believes that gay people have a constitutional right to marriage have a “ridiculous and absurd reading of the U.S. Constitution.”

“There is no federal constitutional right to same sex-marriage,” Rubio said, before criticizing gay rights advocates for supposedly trying to shut down debate over the issue.

It doesn’t exist. There is no federal constitutional right to same sex-marriage. There isn’t such a right. You would have to really have a ridiculous and absurd reading of the U.S. constitution to reach the conclusion that people have a right to marry someone of the same sex. There is no such constitutional right. Can a state decide to change their laws? Yes, but only through the political process, not through the court system and that’s what is happening now.

The advocates of same-sex marriage refuse to go to the legislatures because they can’t win that debate, they don’t want to have a debate in society. They want courts to impose it on people and they are not even satisfied with that. They have now gone further. They want to stigmatize, they want to ostracize anyone who disagrees with them as haters. It’s very simple. This is not a policy against anyone. I believe, as do a significant percentage of Americans, that the institution of marriage, an institution that existed before government, that has existed before laws, that institution should remain in our laws recognized as the union of one man and one woman.”

Jim Garlow: Marriage Equality Ruling Would Make Supreme Court 'The Laughingstock Of Historians And The World'

At today’s March for Marriage, Pastor Jim Garlow offered a lengthy explanation for why he believes marriage equality is wrong, asking the audience to repeat several Hebrew words found in Genesis before rearranging the letters to make the word “fire,” which of course proves that if you allow marriage equality you are going to Hell.

“You mess with the definition of marriage, and you burn, you’re toast, you can’t win that one,” he said.

This explanation is so obvious, he said, that if the Supreme Court rules in favor of marriage equality this year, it will soon become a “laughingstock” for having promoted the “ridiculous” idea of legal marriage for gay and lesbian people.

“Quoting from the Broadway musical, I would say this to the Supreme Court,” he said. “‘Your arms are too short to box with God.’ You can’t mess with Him. You can’t change the definition of marriage. If you try, they will laugh at you in 25 or 50 years. This Supreme Court, if they try to change that definition, they’ll be laughed at, they’ll be scoffed at. ‘How ridiculous was this notion?’ And this whole concept of so-called ‘same-sex marriage’ will be on the ash heap of history and the Supreme Court will be the laughingstock of historians and the world. They cannot change what God has established.”

Mat Staver: 'No Choice' But To Disobey Supreme Court Marriage Ruling

Speaking at the National Organization for Marriage’s March for Marriage today, Liberty Counsel founder Mat Staver repeated his frequent comparison of a potential Supreme Court ruling in favor of marriage equality to the infamous Dred Scott decision, declaring that he would have “no choice” but to disobey such a “lawless” decision.

Staver, who has recruited hundreds of anti-gay activists to sign onto a pledge to disobey a high court ruling in favor or marriage equality, told the crowd, “As someone who’s argued before the United States Supreme Court, I have great respect for this court, but have no respect and cannot respect a lawless decision.”

Saying that like Dred Scott, a decision in favor of marriage equality would be “contrary to the natural law of God,” Staver said, “As much as I’m an attorney and I respect the rule of law, I also respect the higher law. And when an earthly law collides with the higher law, we have no choice to obey the higher law.”

“Marriage is the union of a man and a woman,” he added. “As a policy matter, any other union says that God’s design is flawed. As a policy matter, any other union says that boys don’t need fathers and girls don’t need mothers.”

March For Marriage: 'It Was Adam And Eve, And Not Adam And Steve!'

There was a special tone of urgency at today’s March for Marriage, held just days before the Supreme Court hears arguments on the constitutionality of bans on gays and lesbians marrying, which even many marriage equality opponents believe may lead to a sweeping decision in favor of marriage rights.

Father Johannes Jacobse, an Orthodox priest from Florida, set the tone at the National Organization for Marriage’s event when he warned that if marriage equality becomes law, “in the end, the state will be telling you how to live and you will lose your freedom and the family will be weakened and the society will crumble and might even be destroyed.”

“God created the family,” he added. “In the beginning, in the beginning, it was Adam and Eve and not Adam and Steve!”


 

Right Wing Bonus Tracks - 4/24/15

  • Laurie Roth warns that Christianity will be criminalized if the Supreme Court legalizes gay marriage.
  • Steve McConkey of 4 Winds Christian Athletics worries that "Bruce Jenner's interview with Diane Sawyer on 20/20 will be glorified by the LGBTQ movement."
  • BarbWire's Gina Miller declares that "Our nation has become a lunatic."
  • Richard Land says that American Christians are the real victims of discrimination: "It's ugly; it's thuggish; it's brutish. It's the totalitarian left in all of its ugly face."
  • Finally, Phil Burress and the Citizens for Community Values Action PAC have turned against Ben Carson because Carson endorsed Rob Portman, whom CCV is working to defeat in the GOP primary: "[I]f you come out and endorse a candidate who believes in same-sex marriage, then that pretty much puts you into the same camp."

Huckabee: Obama Made Race Relations Worse By Making 'Everything About Race'

In an interview with a South Carolina radio program on Martin Luther King , Jr. Day this year, Mike Huckabee blamed President Obama and then-Attorney General Eric Holder for making things “much worse for race relations” by making “everything about race” rather than declaring racial inequality to be over.

Pastor Kevin Boling, interviewing Huckabee on his “Knowing the Truth” radio program, asked the former Arkansas governor and potential GOP presidential candidate if the country is “more united today after six years of the first African American being in the White House” or if “the president missed a golden opportunity to unite the country.”

“I think, sadly, the president has not only missed the opportunity,” Huckabee responded, “but between the president and Eric Holder, the attorney general, I think it actually made things much worse for race relations.”

“Because when a person is elected to the presidency, it’s kind of hard to say that ‘gee, there’s a glass ceiling for people of color,’” he continued. “I just think it sort of takes that argument away. That doesn’t mean that there aren’t still some racists here and there, or that it’s a view that a lot of people may have. But you can’t say that a person of color can’t make it anymore, because when you’re president, you’ve kind of made it. And when you’re attorney general, you’ve sort of made it.

“But instead of saying, ‘Look, let’s celebrate how far we’ve come, let’s now realize that we can focus on individual achievement and opportunity,’ instead both the president and the attorney general have made everything about race, and as a result, I think it’s taken us many, many steps backward rather than forward.”

Santorum & Huckabee Join Anti-Gay Extremists In Vowing To Resist Marriage Equality Ruling

Likely GOP presidential candidates Rick Santorum and Mike Huckabee have joined more than 200 anti-gay activists in signing a pledge vowing to resist any Supreme Court ruling in favor of marriage equality.

The pledge, which was co-written by Mat Staver of the right-wing legal group Liberty Counsel and Deacon Keith Fournier, a Catholic activist who recently argued that marriage equality is quite literally an attack of the Devil, recycles the language of a similar document circulated by right-wing groups when the Supreme Court took up a previous set of marriage cases in 2013. Staver and a number of other activists introduced the current pledge at a press conference this morning.

Along with Huckabee and Santorum, signers include former House GOP leader Tom Delay; big players in the Religious Right including John Hagee, Samuel Rodriguez and Focus on the Family’s James Dobson; and fringe anti-gay activists including Peter LaBarbera, Matt Barber, Cindy JacobsLinda Harvey and Bradlee Dean.

Comparing any sweeping decision in favor of marriage equality to the Dred Scott case, the activists vow that they will not recognize such a decision and indicate that they would try to convince national and state executive branches not to enforce it.

The full text of the pledge:

We stand together in defense of marriage and the family and society founded upon them. While we come from a variety of communities and hold differing faith perspectives, we are united in our common affirmation of marriage.

On the matter of marriage, we stand in solidarity. We affirm that marriage and family have been inscribed by the Divine Architect into the order of Creation. Marriage is ontologically between one man and one woman, ordered toward the union of the spouses, open to children and formative of family. Family is the first vital cell of society, the first government, and the first mediating institution of our social order. The future of a free and healthy society passes through marriage and the family.

Marriage as existing solely between one man and one woman precedes civil government. Though affirmed, fulfilled, and elevated by faith, the truth that marriage can exist only between one man and one woman is not based on religion or revelation alone, but on the Natural Law, written on the human heart and discernible through the exercise of reason. It is part of the natural created order. The Natural Law is what Dr. Martin Luther King, Jr., referred to as a higher law or a just law in his famous Letter from Birmingham Jail.

Marriage is the preeminent and the most fundamental of all human social institutions. Civil institutions do not create marriage nor can they manufacture a right to marry for those who are incapable of marriage. Society begins with marriage and the family.

We pledge to stand together to defend marriage for what it is, a bond between one man and one woman, intended for life, and open to the gift of children.

The institutions of civil government should defend marriage and not seek to undermine it. Government has long regulated marriage for the true common good. Examples, such as the age of consent, demonstrate such a proper regulation to ensure the free and voluntary basis of the marriage bond. Redefining the very institution of marriage is improper and outside the authority of the State. No civil institution, including the United States Supreme Court or any court, has authority to redefine marriage.

As citizens united together, we will not stand by while the destruction of the institution of marriage unfolds in this nation we love. The effort to redefine marriage threatens the essential foundation of the family.

Experience and history have shown us that if the government redefines marriage to grant a legal equivalency to same-sex couples, that same government will then enforce such an action with the police power of the State. This will bring about an inevitable collision with religious freedom and conscience rights. The precedent established will leave no room for any limitation on what can constitute such a redefined notion of marriage or human sexuality. We cannot and will not allow this to occur on our watch. Religious freedom is the first freedom in the American experiment for good reason.

Conferring a moral and legal equivalency to any relationship other than marriage between a man and a woman, by legislative or judicial fiat, sends the message that children do not need a mother and a father. As a policy matter, such unions convey the message that moms and dads are completely irrelevant to the well-being of children. Such a policy statement is unconscionable and destructive. Authorizing the legal equivalency of marriage to same-sex couples undermines the fundamental rights of children and threatens their security, stability, and future.

Neither the United States Supreme Court nor any court has authority to redefine marriage and thereby weaken both the family and society. Unlike the Legislative Branch that has the power of the purse and the Executive Branch which has the figurative power of the sword, the Judicial Branch has neither. It must depend upon the Executive Branch for the enforcement of its decisions.

As the Supreme Court acknowledged in the 1992 decision of Planned Parenthood v. Casey, its power rests solely upon the legitimacy of its decisions in the eyes of the people. If the decisions of the Court are not based on the Constitution and reason, and especially if they are contrary to the natural created order, then the people will lose confidence in the Court as an objective arbiter of the law. If the people lose respect for the Court, the Court’s authority will be diminished.

The Supreme Court was wrong when it denied Dred Scott his rights and said, “blacks are inferior human beings.” And the Court was wrong when Justice Oliver Wendell Holmes wrote in Buck v. Bell, “three generations of imbeciles are enough,” thus upholding Virginia’s eugenics law that permitted forced sterilization. Shamefully, that decision was cited during the Nuremburg trials to support the Nazi eugenic holocaust.

In these earlier cases, the definition of “human” was at issue. Now the definition of “marriage” is at issue. The Constitution does not grant a right to redefine marriage — which is nonsensical since marriage intrinsically involves a man and a woman. Nor does the Constitution prohibit states from affirming the natural created order of male and female joined together in marriage.

We will view any decision by the Supreme Court or any court the same way history views the Dred Scott and Buck v. Bell decisions. Our highest respect for the rule of law requires that we not respect an unjust law that directly conflicts with higher law. A decision purporting to redefine marriage flies in the face of the Constitution and is contrary to the natural created order. As people of faith we pledge obedience to our Creator when the State directly conflicts with higher law. We respectfully warn the Supreme Court not to cross this line.

We stand united together in defense of marriage. Make no mistake about our resolve. While there are many things we can endure, redefining marriage is so fundamental to the natural order and the common good that this is the line we must draw and one we cannot and will not cross.

h/t RWW reader Erik

Revolution! Anti-Gay Activists Threaten Uprising If Supreme Court Approves Marriage Equality

Speaking from the pulpit of the New Life Church in Colorado Springs, Colorado, in May 2004, Focus on the Family founder James Dobson called for an amendment to the U.S. Constitution to ban same-sex marriage. Dobson’s words were simulcast into churches across the country as part of a “Battle for Marriage” rally that just happened to coincide with President George W. Bush’s hard-fought reelection campaign. Three months earlier, the president himself hadannounced to the nation that “to prevent the meaning of marriage from being changed forever, our nation must enact a constitutional amendment to protect marriage in America.”

Opposition to same-sex marriage emerged as a key component of the president’s reelection strategy that year, as the Bush campaign worked with Religious Right leaders, including Dobson, to marshal conservative voters to the polls to back state constitutional amendments banning same-sex marriage and other unions. Ballot measures in 11 states, all successful, aided the president’s reelection bid and helped to swing the momentum, for a time, to the side of the anti-gay Right.

While a federal constitutional amendment banning marriage for gay and lesbian couples had failed to clinch the required votes from either house of Congress, after the 2004 election, Dobson stressed that “mainstream Americans” supported such an amendment, knowing that they “could not stand idly by while the radical gay agenda was forced down their throats.”

A decade later, Dobson left Focus on the Family, reportedly in part because the organization he had founded refused to give a leadership position to his divorced son. Dobson and his son Ryan now host a radio program called “Family Talk” and Focus has moved on under the less fiery leadership of Jim Daly. Ted Haggard, the pastor of the church where Dobson spoke at the 2004 “Battle for Marriage,” eventually left his post after acknowledging that he had relationships with men. An architect of Bush’s 2004 re-election strategy, Ken Mehlman, announced six years later that he is gay. Another Bush campaign strategist, Karl Rove, said in 2013 that he could see a future GOP presidential nominee endorsing gay marriage.

Public opinion has also changed dramatically in the decade since Bush’s reelection. Polling now consistently shows majority support for marriage equality, which is legal in 37 states.

This dramatic shift toward marriage equality may culminate this year when the Supreme Court hears arguments in Obergefell v. Hodges, a collection of cases challenging the constitutionality of the remaining state-level bans on same-sex marriage.

But the Religious Right is not ready to give up what was, until recently, a winning culture-war issue.

Now, as even many conservative pundits are predicting that the Supreme Court will strike down the remaining state bans on same-sex marriage, Religious Right leaders are preparing their response.

In a conference call with other movement figures, Dobson was steadfast in his opposition. If the Supreme Court strikes down the state bans and states across the country fail to convene “a state constitutional convention to re-examine the Constitution” on marriage, Dobson warned, “we’re going to see a general collapse in the next decade or two.”

Worse, Dobson said, there could be a war: “Talk about a Civil War, we could have another one over this.”

This style of apocalyptic rhetoric surrounding the Supreme Court’s upcoming decision is not uncommon in a movement whose leaders are preparing to commit civil disobedience and calling on states to defy the court if it issues a broad ruling in favor of marriage rights for gay and lesbian couples.

Manhattan Declaration

The Religious Right’s current strategy in the fight against marriage equality — claiming to be the real victims while making wild warnings about imminent anti-Christian persecution — was previewed in the 2009 signing of the Manhattan Declaration and the campaign against the Shepard-Byrd Hate Crimes Prevention Act the same year.

Warning that America is on the brink of turning into a Nazi-like state where religious freedom is a thing of the past, a group of Roman Catholic and evangelical leaders, including prominent Religious Right figures, signed The Manhattan Declaration, pledging their commitment to civil disobedience in the face of what they described as the tyranny of gay rights laws and legal abortion.

Signers asserted that supporters of gay marriage and abortion rights are bent on trampling their religious freedoms. They compared themselves to Christian martyrs, civil rights leaders like Martin Luther, resisters to Nazi tyranny, heavenly angels and the signers of the Declaration of Independence. One of the declaration’s architects, the late Religious Right leader Chuck Colson, worried that Christians in America would soon end up in jail, while Dobson wondered if Americans will be forced to “leave this beloved country and spend the rest of our lives in exile.”

That same year, Religious Right activists launched a relentless, but unsuccessful, campaign against the Shepard-Byrd Hate Crimes Prevention Act, which expanded the federal hate crimes law to include crimes motivated by the victim’s sexual orientation or gender identity. The Right alleged that the bill would criminalize Christian teachings and the Bible, throw pastors in jail, quash free speech and legalize pedophilia and other illegal sex acts. In the five years following the law’s enactment, none of the wild predictions about its effects have come close to materializing. But that hasn’t stopped the Religious Right from recycling the very same discredited claims to warn against nationwide marriage equality.

For example, Rick Scarborough, a prominent Texas pastor and activist with close ties to politicians including Sen. Ted Cruz, has repeated his unfounded claims about the 2009 hate crimes act almost verbatim when discussing the potential dangers of legalizing same-sex marriage. As did Mike Huckabee, who told pastors on a conference call that preaching against homosexuality will be criminalized. Just this month, Scarborough warned that if gay couples are no longer barred from marriage, preaching from the Bible will become a crime and anti-gay conservatives will be thrown in jail. Five years ago, he made almost exactly the same dire warning about the hate crimes act.

Influential Religious Right groups including the American Renewal Project, led by GOP organizer David Lane, and the Family Research Council are asking pastors to tell their congregations that marriage equality could bring about the end of freedom and, according to Lane, “a complete moral breakdown .” Lane has previously warned that legal equality for LGBT people will eventually lead to America’s “utter destruction” and even terrorist attacks.

Others have taken to likening themselves to Jews living in Nazi Germany and African Americans during the Jim Crow era.

The Religious Right’s apocalyptic rhetoric about marriage equality has only become more incendiary as many of the ban’s defenders begin to expect that they will lose at the Supreme Court.

Nazi Germany, Jim Crow comparisons

Increasingly, Religious Right leaders have been portraying the push for equal rights for the LGBT community as a fascist, Nazi-style movement that will usher in a wave of oppression. And much like how Martin Luther King Jr. and the Civil Rights Movement resisted Jim Crow, these activists argue, conservatives must also defy gay rights laws that they view as equally if not more oppressive.

Bryan Fischer, the conservative radio host and former American Family Association spokesman, regularly claims that gay people are modern-day Nazis and to blame for the rise of Nazism in Germany, asserting that Adolf Hitler was “an active homosexual” who recruited gays into his cause because “homosexual soldiers basically had no limits and the savagery and brutality they were willing to inflict on whomever Hitler sent them after.”

Family Research Council President Tony Perkins has also wondered when gay rights supporters will “start rolling out the boxcars to start hauling off Christians.”

Mat Staver, chairman of the conservative legal advocacy group Liberty Counsel, has likened a potential pro-equality Supreme Court ruling to the infamous Dred Scott decision and urged people to defy such a ruling just as they would “if the government forced you turn over a Jew in Nazi Germany.” Staver, who has warned about the prospect of “forced homosexuality” and repeatedly compared gays to terrorists, insists that the Supreme Court could spark a new Civil Rights Movement, this time to oppose gay rights.

An alarming number of anti-gay activists have compared themselves to Dietrich Bonhoeffer, a Lutheran theologian who was executed for defying Nazi rule. “This is a Dietrich Bonhoeffer moment for every preacher in America,” Scarborough told participants in the recent activist conference call hosted by Dobson. Staver offered a similar message to conservatives in a recent radio interview: “This is a Bonhoeffer moment.”

David Lane has said that Christians in America “must risk martyrdom” over the issue of marriage equality. Likewise, American Family Association governmental affairs director Sandy Rios has repeatedly urged opponents of gay rights to “prepare for martyrdom.”

Conservative pundit Glenn Beck told his show’s viewers this year that gay rights advocacy is leading to concentration camps and “a Christian holocaust.” Other conservative commentators have similarly suggested that gay people are pushing for anti-Christian persecution and genocide.

The persecution theme seems to have struck a chord. Leading GOP figures including Sen. Rand Paul of Kentucky and former Arkansas Gov. Mike Huckabee, along with several Republican congressmen, all appear in a film to be released this year that alleges that the gay rights movement plans to outlaw Christianity. Huckabee has repeatedly invoked Nazi tyranny while discussing gay rights, and even said that the gay community seeks to ultimately destroy churches and the Gospel. Texas Republican Sen. Ted Cruz accused gay rights supporters of waging a “jihad” against freedom.

Even more frequently, anti-gay activists maintain that gay rights will usher in a new form of slavery and Jim Crow.

“Apparently someone forgot to tell the Stormtroopers in the homosexual movement about the Civil War, the Civil Rights Movement, and freedom of both will and conscience,” Fischer said last year. “The leaders of the Gay Gestapo have become our new slave masters. They can now send us to the hole if we refuse the massa’s demands.”

Fischer has also charged that gay rights measures violate the constitutional ban on slavery, and even declared that as a result of gay rights, “Jim Crow is alive and well, we’ve got Jim Crow laws right back in operation, Christians are the new blacks.”

Some activists are calling for an anti-gay version of Rosa Parks. One even suggested that gay marriage opponents should follow in the footsteps of the “sidewalk counselors” who stand outside of abortion clinics in order to dissuade women from entering.

Brian Brown, the head of the National Organization for Marriage, has similarly claimed that gay rights advocates are practicing an “anti-religious” version of Jim Crow, while Fox News pundit and RedState editor Erick Erickson has said that “gay rights activists use the tactics of Bull Connor to push for what they declare civil rights.”

Revolution

Perkins, the Family Research Council leader, is one of the most visible and vocal figures in the Religious Right, frequently appearing on national television and hosting his own daily radio show. Perkins also organizes an annual conference, the Values Voter Summit, which brings top Republican politicians together with Religious Right activists. But despite his veneer of respectability, Perkins is just as extreme as activists considered to be on the far-right fringe: He has spoken out in defense of Uganda’s “kill the gays” measure and called gay rights supporters Satanic, among other things.

Perkins has also taken to warning that if the Supreme Court sides with marriage equality advocates, the U.S. will see a full-blown revolution.

Perkins warned in 2012 that if the Supreme Court were to strike down same-sex marriage bans throughout the country, “I’m telling you what, I think you will create a firestorm of opposition. I think that could be the straw that broke the camel’s back, when you look at a nation that is so divided along these moral and cultural issues that you could have — I hate to use the word — a revolt, a revolution. I think you could see Americans saying, ‘you know what, enough of this,’ and I think it could explode and just break this nation apart.”

“They’re sowing the seeds of the disillusion of our republic,” Perkins said of gay marriage supporters in 2014. “I think there’s coming a point that they’re going to push Christians to a point where they’re not going to be pushed anymore, and I think we’re very quickly coming to that point.”

As the Supreme Court considered a pair of marriage cases in 2013, Perkins said that the threat of a revolution may keep the justices from striking down same-sex marriage bans:

I believe the court will push as far as they think they can without creating a social upheaval or a political upheaval in this country. They’re smart people, I think, they understand how organizations and how societies work and if you get your substructure out of kilter with the superstructure, if you get government out of whack with where the people are and it goes too far, you create revolution. I think you could see a social and cultural revolution if the court goes too far on this.

Just last month, Perkins again predicted that the Supreme Court could trigger an uprising with a ruling in favor of marriage equality: “If the court imposes upon the nation a redefinition of marriage, I don’t think the nation is going to accept it, I absolutely don’t, and the conflict that is going to come as a result of it.”

Perkins may not find much support for his anti-gay revolution from the public at large, but he may find his some willing participants in his fellow Religious Right leaders.

Liberty Counsel founder Mathew Staver has claimed that a Supreme Court ruling favorable to marriage equality would take the country “back to the days of the American Revolution” and create the “groundswell of a potential new American Revolution.”

“Martin Luther [King] was always speaking of non-violent protest and I would hope that’s what we would do here but you never know what happens,” he cautioned.

Staver warns that an adverse Supreme Court ruling, along with President Obama’s pro-gay-rights policies and the possible passage of the Employment Non-Discrimination Act, would have “catastrophic consequence[s] for our religious freedom, for the very function of the family, for marriage, for our human existence, for civil society and for any area of our liberty.”

“The church and people of faith and values need to rise up” against such a ruling, he said in 2013. “We just simply cannot allow this to become the law of the land.”

The previous year, Staver warned that marriage equality “could be the unraveling of the United States” and trigger a civil war:

This is the thing that revolutions literally are made of. This would be more devastating to our freedom, to our religious freedom, to the rights of pastors and their duty to be able to speak and to Christians around the country, then anything that the revolutionaries during the American Revolution even dreamed of facing. This would be the thing that revolutions are made of. This could split the country right in two. This could cause another civil war. I’m not talking about just people protesting in the streets, this could be that level because what would ultimately happen is a direct collision would immediately happen with pastors, with churches, with Christians, with Christian ministries, with other businesses, it would be an avalanche that would go across the country.

After the Supreme Court struck down a key portion of DOMA, Staver declared that the country was “crossing into the realm of rebellion, we’re crossing into the realm of revolution.”

The Alabama Example

After the Supreme Court’s Windsor decision led to a string of federal court decisions striking down bans on same-sex marriage, Religious Right leaders pleaded for governors and other state officials to openly flout the rulings.

Perkins said that states should not “listen to these courts” that make decisions “inconsistent with scripture.” Staver agreed, claiming that the states must defy any court which has “literally lost their mind.”

Mike Huckabee, the former Arkansas governor and presidential candidate, said state and local officials should simply refuse to enforce such rulings, explaining: “Well, the courts have spoken and it’s an important voice, but it’s not the voice of God and the Supreme Court isn’t God.”

Finally, they found their answer in Roy Moore, the elected chief justice of the Alabama Supreme Court.

Moore emerged as a conservative hero over a decade ago, when he defied orders to remove a Ten Commandments monument that he installed in the courthouse rotunda during his previous term as chief justice. When the standoff eventually led to Moore losing his post, he parlayed his newfound fame into two unsuccessful gubernatorial campaigns and even a presidential “exploratory committee.” Moore also launched his own far-right legal advocacy group, the Foundation for Moral Law.

Moore returned to the court after winning a statewide election in 2012 and two years later, he once again made national headlines when he ordered state probate judges, who are responsible for issuing marriage licenses, to disregard a Bush-appointed federal judge’s decision striking down the state’s ban on same-sex marriage. Moore demanded that the state flout the ruling, saying that it had no need to implement the decision.

Moore has contended that gay marriage will “destroy the very foundation on which this country was built” and “destroy this country,” warning that the country will “suffer” divine judgment for embracing Satanic gay rights. “No society is prepared to deal with the problems arising out of same-sex marriages: child abuse, adoption, divorce, foster care, alimony, and the list could go on and on,” Moore told one anti-marriage-equality rally. In his prior stint as chief justice, he wrote that homosexuality is an “inherent evil” and “criminal lifestyle” that “should never be tolerated.”

Insisting that his personal reading of the Bible trumps the federal court’s ruling, Moore believes that any decision which contravenes his understanding of God’s law is inherently unconstitutional since the Constitution, he claims, is based on divine precepts.

His case against marriage equality is simple: “Homosexuality is wrong and we all know it. Marriage of the same sex is wrong and we all know it.” Moore’s legal advocacy organization, now led by his wife, defended his order to probate judges by explaining that “homosexual conduct is still sin, and we must stand firm for what is right.”

Conservative politicians hailed Moore. The head of the Alabama GOP thanked Moore for saving the state from God’s wrath; Religious Right preacher Cindy Jacobs said God had told her that He is using Moore “to reverse what Satan has done”; NOM’s Brian Brown praised Moore’s “principled stand” against “tyranny”; and Bryan Fischer said that Moore acted in the finest tradition of Martin Luther King, Jr. by "waging the civil rights battle of this decade.”

Moore took his show to the road, telling a rally in Texas held in his honor that he hopes he will not have to “give his life” in the fight against gay marriage. He warned at a Family Research Council event that the government will soon legalize “parent-and-child” marriages and justify “taking your children simply by the same logic they’re following.”

“Christians need to stand up and do their duty to God as their duty to their country,” he said.

Some Republicans and their allies in the Religious Right hope that Moore’s defiant stance will serve as a model for the rest of the country.

A bill introduced in Texas not only declares that the state does not have to follow any U.S. Supreme Court ruling on marriage equality, but it goes one step further by blocking funding for the issuance of marriage licenses to same-sex couples. The bill would go so far as to punish state employees who issue marriage licenses to same-sex couples, barring such employees from “a salary, pension, or other employee benefit.”

In North Carolina, a group of Republican lawmakers want to create a religious exemption for officials in charge of issuing marriage licenses who don’t want to follow a recent court ruling legalizing same-sex marriage. Staver’s group, Liberty Counsel, filed a lawsuit “requesting emergency protection from the state courts for any magistrate who refuses to issue a marriage license to a same-sex couple.”

GOP lawmakers in Oklahoma reacted to a court ruling striking down their state’s marriage ban by proposing a bill which would remove any judge who issues a marriage license to a same-sex couple and deny salaries, benefits and pensions to any state employees involved in marrying gay couples. Another bill in Oklahoma would remove judges from the marriage licenses process altogether and instead restrict marriage duties to “an ordained or authorized preacher or minister of the Gospel, priest or other ecclesiastical dignitary of any denomination who has been duly ordained or authorized by the church to which he or she belongs to preach the Gospel, or a rabbi.”

End of the Line

While social conservative leaders have mostly focused on the purported repercussions of a decision that they see as unfavorable, they also have a plan in case the court sides with their arguments: demand that states roll back same-sex marriage rights and re-impose bans previously removed by the voters, lawmakers or courts.

For now, though, right-wing leaders will be focused on doing what they always do: misleading their supporters about the so-called dangers of gay rights, making reckless charges of religious persecution, and supporting unconstitutional means to promote their discriminatory goals.

However, Dobson and his allies do see the silver lining of legal gay marriage. In a conversation with Dobson the week before the Supreme Court’s oral arguments in the marriage cases, pastor Jim Garlow and former National Organization for Marriage president Maggie Gallagher predicted that Americans will ultimately reject gay marriage once the country experiences its horrible consequences; that is, if America is able to survive that long.

Anti-Gay Activists: We Are Prepared To Die To Fight Gay Marriage 'Slavery'

Conservative activist E.W. Jackson said at an anti-gay press conference at the National Press Club earlier today that conservative Christians are prepared to die in the fight over gay marriage, just like the Christian students in Kenya who were recently murdered by radical Islamic terrorists.

Jackson, who was the 2013 Republican nominee for lieutenant governor of Virginia,  added that gay marriage is “sowing the seeds of our eternal destruction” as it is removing people's reliance on God’s truth. “We will give our lives standing for the truth,” he said.

Janet Boynes, an ex-gay activist, also warned that the Supreme Court will try to send people “back to slavery” by ruling in favor of marriage equality, while preacher Rick Scarborough said that he is prepared to die over the marriage debate.

Ex-Gay Activist: Kids Getting 'Hooked' On Homosexuality

At an anti-marriage-equality press conference today at the National Press Club, ex-gay activist Janet Boynes claimed that media outlets and the White House are shutting out ex-gays because they fear that they will “debunk” the entire gay rights movement.

“Why don’t you see me on CNN or ‘Today’ or MSNBC or ‘Good Morning America’?” she asked. “Because they have all the gays and lesbians on their show, but if I come on the show I will tear down their belief system. That’s my goal, to debunk everything that they are saying to be true when I know it is a lie.”

Boynes went on to say that gay people are using schools and Hollywood to convince kids to “try out homosexuality” get “hooked.” “When we reject reality, we harm our children,” she said. “Their goal is to indoctrinate our kids.”

Boynes also had a message for President Obama: “You have allowed gays and lesbians into the White House. You sat down with them. You had dinner with them. You heard their voices, but not once have you allowed those of us who walked out of the life of homosexuality to come into the Oval Office, to come into the White House and hear our stories. I challenge you today to allow us to come, and you listen to what we have to say.”

Tony Perkins: Impeach Supreme Court Justices Who Rule For Marriage Equality

Update: Perkins later denied making his comments about impeachment on "Face the Nation."

Family Research Council President Tony Perkins spoke with Iowa-based radio host Jan Mickelson yesterday about the upcoming marriage case at the Supreme Court, which Perkins predicted will end with the court striking down bans on same-sex marriage across the country. Once this occurs, Perkins warned, “it will be open season on people of faith.”

He predicted that the court will issue a ruling similar to Roe v. Wade, further dividing Americans and contradicting “natural law.”

Mickelson suggested that if this happens, members of Congress should try to “remove” the Supreme Court’s “jurisdiction” over the marriage issue and “nullify” its decision, sending the message to the justices that “if you try it again we will impeach your sorry keisters.” Perkins heartily agreed: “I think you’re absolutely right.”

Mickelson also said that Justices Kagan and Ginsburg should recuse themselves from the case since they have both officiated weddings for same-sex couples, claiming that the two are trying to impose their religion of “secular progressivism” on the country.

“Why should a religious minority like Kagan or Ginsburg, I’m not talking about their Jewish background, I’m talking about their secular progressivism, their form of religion, why does their religion get a seat at the table and everybody else’s view gets vilified?” he asked.

Tony Perkins: Evolution Proves Homosexuality Is Wrong

Yesterday on “Washington Watch,” Family Research Council President Tony Perkins blasted President Obama and Hillary Clinton for “evolving” on the issue of marriage equality, prompting one listener to chime in and tell Perkins that he doesn’t believe in the theory of evolution anyway.

Perkins agreed with the caller’s take on evolution, stating that “the evidence is overwhelming” that evolution doesn’t occur. However, since Obama and Clinton believe that “we are constantly in this state of evolution,” Perkins said, then they should oppose gay rights.

“If you logically game this out, the idea that somehow same-sex marriage or same-sex attraction, homosexuality, could be the advancement of evolution,” he said, “well, it would be the end of the road. It is a dead-end street. You’re certainly not going to reproduce.”

How Big Money In Politics Is Making It Harder For Criminal Defendants To Get A Fair Trial

When the Supreme Court struck down limits on outside spending in elections in the 2010 Citizens United case, critics pointed to a potentially huge public policy impact in issues ranging from environmental protection to tax policy to health care to voting rights.

But one impact of Citizens United has gone without as much public discussion as it deserves: It’s making it harder for criminal defendants to get a fair trial.

Last fall, the American Constitution Society released a report by two Emory University law professors illustrating that the big spending that Citizens United let loose in state judicial elections created a climate in which elected judges were more reluctant to side with defendants in criminal cases.

Joanna Shepherd and Michael S. Kang found that outside groups seeking to influence judicial elections — usually for reasons unrelated to criminal justice policy — often relied on “Willie Horton” style attack ads implying that targeted judges were “soft on crime.” The proliferation of outside spending and the attack ads that the spending bought, they found, correlated with a decrease in the frequency with which elected state appellate judges ruled in favor of defendants in criminal cases.

“Unlimited independent spending is associated with, on average, a seven percent decrease in justices’ voting in favor of criminal defendants,” they wrote. “That is, the results predict that, after Citizens United, justices would vote differently and against criminal defendants in 7 out of 100 cases.”

Shepherd discussed her findings yesterday at a panel convened by ACS, along with retired Montana Supreme Court Justice James Nelson, the National Association of Criminal Defense Lawyers’ Norman Reimer and Tanya Clay House of the Lawyers’ Committee for Civil Rights Under Law.

Nelson, who was on the Montana Supreme Court when it famously ruled that Citizens United didn't apply to that state's unique history of corruption (Nelson dissented, saying the high court’s ruling applied to Montana, but took the opportunity to demolish the decision while he was at it), said he had lived first-hand the impact of big money in judicial races.

“The fact of the matter is that is when justices running for political office are attacked during their campaigns, it forces them to look over their shoulder constantly,” he said. “And I can tell you that from personal experience. You have to fight to make yourself vote the way the law requires you to vote. And most judges do. But it’s in these marginal cases where there’s a close call and perhaps the case should go to a defendant, it doesn’t go to the defendant.”

The groups spending money on judicial attack ads, he said, “really don’t give a damn about defendants’ rights. They really don’t care. What they want to do is to get somebody onto a court who marches in lockstep with their philosophy, or get somebody off the court that does not march in lockstep with their philosophy.”

Reimer sounded a similar note: “The fight is really about commercial interests. It’s usually about the plaintiffs’ bar versus the corporate interests, the unions, the conservatives. It’s about nothing to do with criminal justice. But because of the fear factor, that’s where you go after somebody.”

“I think we all need to understand and appreciate what’s really at risk here,” Nelson said. “And what’s really at risk is the fair, independent and impartial judicial system that most citizens in this country, and I think most lawyers in this country, simply take for granted. And if the dark money flows from Super PACS and the Koch brothers and RSLC and groups like them get control of the judiciary … That’s what this is all about: getting control of the third branch of government. If they get control of that third branch by spending their way to the top, then we’re going to lose that fair, impartial and independent judiciary that we’ve all come to expect and rely upon. Certainly criminal defendants are going to suffer immeasurably.”

Clay House pointed out that there is already “a different perception of the criminal justice system and judiciary among communities of color.” Pew found in 2013 that 68 percent of black Americans said they were “treated less fairly than whites” in the courts, while the majority of whites were oblivious to racial disparities in the criminal justice system.

Unchecked spending in judicial elections, the evidence shows, may be making that perception, and the reality, even worse.

Cross-posted from the blog of People For the American Way.

How Big Money In Politics Is Making It Harder For Criminal Defendants To Get A Fair Trial

When the Supreme Court struck down limits on outside spending in elections in the 2010 Citizens United case, critics pointed to a potentially huge public policy impact in issues ranging from environmental protection to tax policy to health care to voting rights.

But one impact of Citizens United has gone without as much public discussion as it deserves: It’s making it harder for criminal defendants to get a fair trial.

Last fall, the American Constitution Society released a report by two Emory University law professors illustrating that the big spending that Citizens United let loose in state judicial elections created a climate in which elected judges were more reluctant to side with defendants in criminal cases.

Joanna Shepherd and Michael S. Kang found that outside groups seeking to influence judicial elections — usually for reasons unrelated to criminal justice policy — often relied on “Willie Horton” style attack ads implying that targeted judges were “soft on crime.” The proliferation of outside spending and the attack ads that the spending bought, they found, correlated with a decrease in the frequency with which elected state appellate judges ruled in favor of defendants in criminal cases.

“Unlimited independent spending is associated with, on average, a seven percent decrease in justices’ voting in favor of criminal defendants,” they wrote. “That is, the results predict that, after Citizens United, justices would vote differently and against criminal defendants in 7 out of 100 cases.”

Shepherd discussed her findings yesterday at a panel convened by ACS, along with retired Montana Supreme Court Justice James Nelson, the National Association of Criminal Defense Lawyers’ Norman Reimer and Tanya Clay House of the Lawyers’ Committee for Civil Rights Under Law.

Nelson, who was on the Montana Supreme Court when it famously ruled that Citizens United didn't apply to that state's unique history of corruption (Nelson dissented, saying the high court’s ruling applied to Montana, but took the opportunity to demolish the decision while he was at it), said he had lived first-hand the impact of big money in judicial races.

“The fact of the matter is that is when justices running for political office are attacked during their campaigns, it forces them to look over their shoulder constantly,” he said. “And I can tell you that from personal experience. You have to fight to make yourself vote the way the law requires you to vote. And most judges do. But it’s in these marginal cases where there’s a close call and perhaps the case should go to a defendant, it doesn’t go to the defendant.”

The groups spending money on judicial attack ads, he said, “really don’t give a damn about defendants’ rights. They really don’t care. What they want to do is to get somebody onto a court who marches in lockstep with their philosophy, or get somebody off the court that does not march in lockstep with their philosophy.”

Reimer sounded a similar note: “The fight is really about commercial interests. It’s usually about the plaintiffs’ bar versus the corporate interests, the unions, the conservatives. It’s about nothing to do with criminal justice. But because of the fear factor, that’s where you go after somebody.”

“I think we all need to understand and appreciate what’s really at risk here,” Nelson said. “And what’s really at risk is the fair, independent and impartial judicial system that most citizens in this country, and I think most lawyers in this country, simply take for granted. And if the dark money flows from Super PACS and the Koch brothers and RSLC and groups like them get control of the judiciary … That’s what this is all about: getting control of the third branch of government. If they get control of that third branch by spending their way to the top, then we’re going to lose that fair, impartial and independent judiciary that we’ve all come to expect and rely upon. Certainly criminal defendants are going to suffer immeasurably.”

Clay House pointed out that there is already “a different perception of the criminal justice system and judiciary among communities of color.” Pew found in 2013 that 68 percent of black Americans said they were “treated less fairly than whites” in the courts, while the majority of whites were oblivious to racial disparities in the criminal justice system.

Unchecked spending in judicial elections, the evidence shows, may be making that perception, and the reality, even worse.

PFAW

Ted Cruz Introduces Anti-Gay Bill Spearheaded By Radical Activist

Days after attending a reception hosted by two gay hotel magnates, Sen. Ted Cruz has introduced two bills that he hopes would block a Supreme Court decision striking down bans on same-sex marriage. One bill would amend the U.S. Constitution to allow states to prohibit same-sex marriage; the other, Bloomberg News reports, “would bar federal courts from further weighing in on the marriage issue until such an amendment is adopted.”

Rep. Steve King introduced a similar measure in the House this week to “strip federal courts of the ability to hear any case involving the issue of marriage equality.”

As Kyle noted yesterday, the proposal put forward by Cruz and King “was the brainchild of Faith 2 Action's Janet Porter,” the anti-gay activist who recently “warned that gay marriage was responsible for Noah's flood” and made a film arguing “that gay activists seek to criminalize Christianity,” among other claims:

  • Claimed that pastors who won’t perform same-sex marriages will be “carried off into jail” in states with marriage equality laws.
  • Blamed gay rights for Noah’s Flood in a column entitled: “How Same-Sex Marriage Points To End Of The World.”
  • Claimed Jason Collins’ decision to come out of the closet will endanger freedom. 
  • Warned that President Obama will use the Swine flu to “round up American citizens” and throw them in “FEMA concentration camps.”
  • Wondered if former Wisconsin Gov. Tommy Thompson is the Antichrist.
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