This morning, six civil liberties experts released a letter emphasizing that reasonable regulations on money in elections do not violate the free speech rights guaranteed in the First Amendment. The authors — academics, philanthropists, and lawyers, all of whom are former leaders of the American Civil Liberties Union (ACLU) — make clear that the protection of civil liberties is entirely compatible with commonsense limits on money in elections.
The letter was released following a barrage of misleading arguments pushed by Sen. Ted Cruz and others about the Democracy for All Amendment, a proposed constitutional amendment to overturn decisions like Citizens United that will be voted on in the Senate on Monday. Though opponents have tried to position themselves as defenders of free speech, with Sen. Cruz going so far as to claim that the amendment would repeal the First Amendment and “muzzle” Americans, this letter emphasizes that it is, in fact, the Court’s twisted interpretation of the First Amendment that threatens to leave Americans without a voice:
Rather than interpreting the First Amendment as assuring everyone a reasonable opportunity to be heard, the Court (and the National ACLU) has turned the First Amendment on its head by guaranteeing the wealthy an expensive set of stereo speakers, and leaving the average citizen with a bad case of laryngitis. Most Americans would find it preposterous to allot more time in a debate to the speaker with the most money. Yet, that is precisely how our campaign finance system functions today.
The authors, many of whom signed a similar letter in 1998, note that our country’s money in politics problem has only gotten worse since then. In the wake of decisions like Citizens United and McCutcheon, they write, “American democracy is almost irretrievably broken.” While they do not weigh in on the Democracy for All Amendment specifically, the civil liberties experts close the letter with a call to restore the promise of the First Amendment by overturning these damaging decisions:
We believe that overturning many of the Court’s narrow 5-4 campaign finance precedents and implementing generous, content neutral political spending limits is the best way to fulfill the promise of James Madison’s First Amendment as democracy’s best friend.
You can read the full text of the letter here.
Since last Friday’s ruling by Federal Judge Barbara Crabb that Wisconsin’s ban on same-sex marriages is unconstitutional, hundreds of same-sex couples have lined up to get marriage licenses across the Badger State. Immediately after receiving the ruling, clerks in Dane and Milwaukee counties began issuing marriage licenses, and in both areas, facilities stayed open late on Friday and continued issuing licenses on Saturday. Officiants, including judges, ministers, and commissioners, married couples on-site at their respective county courthouses.
Similar to actions in other states where courts have struck down same-sex marriage bans, Wisconsin’s right-leaning GOP Attorney General J.B. Van Hollen filed multiple motions to “preserve the status quo” attempting to stop same-sex marriages from happening.
As of Tuesday afternoon, 48 of the state’s 72 counties were issuing marriage licenses to same-sex couples, despite the ongoing legal battle. Wisconsin’s Vital Records Office is accepting the licenses, but holding them until they receive further guidance from Van Hollen.
For its part, the ACLU filed a proposal of how to implement same-sex marriage in the state. If approved, the plan would force Governor Scott Walker, Attorney General Van Hollen, and county clerks across the state to treat all same-sex and opposite-sex couples equally under the law.
Judge Crabb is set to have another hearing on June 19th.
A symposium on the 20th anniversary of the Religious Freedom Restoration Act hosted by First Amendment advocate Charles Haynes at the Newseum in Washington D.C. on November 6 demonstrated one premise of People For the American Way Foundation’s 12 Rules for Mixing Religion and Politics – that people who support a core constitutional principle like religious liberty can disagree with how that principle should be applied. In recent years, religious conservatives have increasingly charged that those who disagree with them on this line-drawing are tyrannical enemies of faith and freedom. The RFRA anniversary was a reminder that, as Bill Moyers wrote in his introduction to the 12 Rules, “We can simultaneously share a strong commitment to religious liberty, while disagreeing over the application of that principle in a given circumstance.”
In fact, an almost unimaginably broad coalition worked to pass RFRA in 1993, including People For the American Way and the ACLU, the National Association of Evangelicals and Concerned Women for America, and a huge array of religious and civil rights groups. Also unimaginable in our political climate: RFRA passed the Senate 97-3 and the House unanimously by voice vote. But divisions within the coalition developed just a few years later and persist today.
RFRA was a response to the Supreme Court’s 1990 Smith decision in a case involving Native Americans who were denied unemployment benefits because they had violated state anti-drug laws through the sacramental use of peyote. The Court ruled that as long as the law in question was applied generally and not designed to target a particular religious practice, there was no real recourse for people whose exercise of religion was restricted. The decision toppled long-standing precedent and left advocates for religious liberty deeply concerned that religious minorities would suffer if there were no legal requirement for reasonable accommodation of their beliefs.
RFRA states that if a law places a substantial burden on a person’s exercise of religion, the government must demonstrate that the law is serving a compelling interest and does so in the least restrictive way. In 1997, the Supreme Court upheld RFRA as it applies to the federal government, but not to the states. Efforts to re-mobilize the RFRA coalition to pass a new law failed when civil rights advocates feared that a broad standard could be used to undermine state civil rights laws such as laws against discrimination based on sexual orientation.
Oliver Thomas, a co-chair of the original RFRA coalition, said it is not surprising that RFRA gets less popular as it gets older and its “majestic generalities” get applied in contentious cases. Organizations that were allies in passing RFRA are now on both sides of political and legal disagreements about how its standards should apply in a variety of situations, including the mandate under the Affordable Care Act that insurance plans include contraception, the proposed Employment Non Discrimination Act that just passed the Senate, and the advance of marriage equality. Even among ENDA’s backers there are disagreements about the nature and extent of religious exemptions in the bill.
The first part of the anniversary symposium, which included PFAW Foundation Board Member Rabbi David Saperstein, presented an insider view of RFRA’s history: the development of the RFRA coalition, the politics of writing the law and building congressional support. One historical tidbit: coalition members had to work hard to overcome objections raised by the U.S. Conference of Catholic Bishops, who feared the law might somehow give a weapon to their opponents on abortion rights issues. Rep. Henry Hyde told coalition members that the bill would not move until they addressed the bishops’ concerns.
That history is particularly interesting given that conservative Catholics are now using RFRA to challenge the contraception mandate. A discussion of the contraception mandate in the Affordable Care Act featured Lori Windham from the Becket Fund for Religious Liberty, which represents a number of companies, business owners, and organizations challenging the mandate, and Dan Mach of the ACLU Program on Freedom of Religion and Belief, which argues that the contraception requirement does not substantially burden the religious freedom of business owners, and that the Obama administration’s accommodation for religious organizations is more than sufficient. Mach noted that while religious liberty is fundamental, it is not absolute, and should not be used to infringe the rights of others.
Another issue discussed by the panelists was whether RFRA protects for-profit corporations – not the owners, but the corporation itself as an entity. Some of the panelists discussing RFRA’s history agreed that conversation about violations of religious liberty were focused on individual people, not for-profit corporations, though some said the debate on RFRA and related laws assumed that companies would be covered. The Becket Fund’s Windham made a case for including such corporations with RFRA’s protections, saying constitutional rights shouldn’t depend on your tax status. The Constitutional Accountability Center has argued otherwise.
Doug Laycock, a University of Virginia law professor, is among the most prominent legal scholars on religious liberty. He finds himself positioned on differing sides in various culture war battles. Just a day before the anniversary symposium, Laycock argued before the Supreme Court, representing people who are challenging the practice of sectarian prayer at city council meetings in the Town of Greece case. In that case he stood with advocates of strong church-state separation. On other issues, such as whether a business owner should have the right not to provide services related to a same-sex wedding, he stands with religious conservatives who are pushing for broad religious exemptions to anti-discrimination laws.
Laycock dismissed right-wing charges that the Obama administration is waging a war on religious liberty. He said the administration has gone to “remarkable lengths” to accommodate religious organizations on the contraception mandate and said he doubts that opponents will be able to convince judges that the current rule creates a substantial burden under RFRA. Obviously, the Becket Fund and other Religious Right legal groups and their clients strongly disagree. Later this month the Supreme Court will consider whether to accept for consideration four cases involving for-profit companies challenging the mandate. Cases involving non-profits have not advanced as far.
A panel on other current controversies placed them in the context of increasing religious pluralism in America, including the rapid growth of “nones” – people who claim to religious affiliation. One panelist noted that religious and civil rights groups can still find common ground in opposition to laws targeting religious minorities, as many did in opposition to Oklahoma’s anti-Sharia law, which was found unconstitutional earlier this year. But it should be noted that some Religious Right groups have in fact backed such laws, and some opposed the building of the Islamic community center in New York that was deceptively dubbed the “Ground Zero Mosque.”
Laycock worries that culture war battles are weakening Americans’ commitment to religious liberty. He faults conservative religious groups for continuing to fight legal marriage equality for same-sex couples. But he also believes LGBT rights advocates should be more willing to accept broad religious exemptions. Laycock said that conservatives’ dug-in resistance to equality diminishes the incentives for gay-rights activists to accommodate them. The challenge, as he sees it: on issues of sexual morality, one side views as a grave evil what the other side views as a fundamental right. In that climate, tens of millions of Americans believe that “religious liberty” empowers their enemies, and neither side is willing to embrace what Laycock considers “live and let live” solutions.
Marc Stern of the American Jewish Committee agreed with Laycock’s concerns about a winner-take-all approach to religious freedom issues, which he said reflects the broader political climate. But the courts will continue to undertake the balancing act required by the Constitution and by RFRA when constitutional principles come into tension. And, he said, once the courts work through issues regarding contraception and LGBT equality, we will all still need to grapple more with larger cultural and legal questions, such as those involving the growing number of nonbelievers who are reshaping America’s religious landscape.
The anniversary symposium, “Restored or Endangered? The State of Religious Freedom,” was sponsored by The Baptist Joint Committee for Religious Liberty, Christian Legal Society, American Jewish Committee, Religious Action Center of Reform Judaism, Union of Orthodox Jewish Congregations, Becket Fund for Religious Liberty and Religious Freedom Center of the Newseum Institute.
Master birther Jerome Corsi visited the Janet Mefferd show last week to promote his new book Bad Samaritans, a “scorching expose” of the American Civil Liberties Union. Like with most of his work, Corsi’s analysis of the ACLU is light on the truth and heavy on the grand conspiracy theories. He tells Mefferd that the ACLU is now promoting pedophilia “as the next sexual horizon” and seeking to indict pastors with non-existent hate speech laws. All of this, Corsi argues, means that “we’re headed right back to the paganism, maybe a broader form of paganism, that was the ancient world.”
Corsi: The ACLU has championed same-sex marriage, and along with same-sex marriage advocates, got a very effective public relations campaign arguing, you know, ‘How would you deny these two men who are in love or two women the ability to be happy,’ emotional issues. But now the ACLU is doing two things. One, they’re pushing the envelope, they’re arguing that pedophilia should be accepted next, as the next sexual horizon that is just a sexual orientation, and we should accept it as natural.
Mefferd: That’s sick.
Corsi: And they’re also arguing that any of the, the clergy, silencing the Church and ministers so that anybody who speaks out on a moral issue, objecting to, say, same-sex marriage on a moral or scriptural basis from Judeo-Christian principles, that’s hate speech and the person’s committing a crime. I mean, the left is not going to be tolerant when the window is fully pushed open and anyone who objects to their agenda is going to be suspect and silenced. And the problem is that if we continue to expand, you know, if every form of human behavior, sexual behavior, that can be imagined is all accepted and legitimated, well then we’re headed right back to the paganism, maybe a broader form of paganism, that was the ancient world, rejected by Christianity at the fall of the Roman Empire.
Mefferd: Oh, it’s exactly the case.