Alabama

Mat Staver: Homosexuality Is 'Very Deadly And Damaging'

Mat Staver of Liberty Counsel stopped by VCY America’s “Crosstalk” yesterday to discuss his group’s attempt to stop judges from issuing marriage licenses to same-sex couples in Alabama. Staver praised Alabama Chief Justice Roy Moore for flouting the ruling of a federal court on the matter and lashed out at the Supreme Court for rejecting Alabama’s appeal of the marriage case, saying that Alabama “does not have to obey” any future Supreme Court ruling “that there’s some invented right to same-sex marriage and therefore you can’t have marriage as a union of a man and a woman.”

“That is so far off the beaten path, so far removed from the Constitution that it is no rule of law,” Staver said. “There is a limit to what the court can do, there is a limit to what the people can stomach. If that court were to say, the laws of gravity were fine for the founders but we have progressed, we’re a progressive society and we think they have changed, you would say, ‘That’s nuts, have they lost their mind?’ The question is: Have they lost their mind by saying there’s a constitutional right for same-sex marriage?”

“Have they literally lost their mind?” he asked.

Staver added that legalizing same-sex marriage is “harmful” to children because it tells them that “your moms and dads are absolutely meaningless.”

“Why would we take a relationship of same-sex unions, same-sex sexual activity, protect it and elevate it when we know that it’s a very harmful and it’s a very deadly and damaging relationship?” Staver asked. “Why would we elevate some kind of bad relationship, bad activity, dangerous and harmful, unhealthy activity to a protected status?”

Bryan Fischer: 'Gay Gestapo' Forcing Alabama Judges Into 'Slavery'

Bryan Fischer is outraged that a federal judge may order the dozens of Alabama probate who are refusing to grant marriage licenses to same-sex couples to back down. On his American Family Radio Program today, Fischer said that such an order would be tantamount to “tyranny” and “slavery” enforced by the “gay gestapo.”

“There’s a court hearing today before the federal judge, and she may order these probate judges to violate their own conscience and their own religious scruples,” he said. “She may order them to violate their conscience. You know what that is, ladies and gentlemen? You are ordered by an agent of the government to violate your conscience? That is tyranny.”

“When you are ordered by an agent of the government to violate your own conscience in something that you do, that is slavery. If you are forced to violate your conscience to do work, that is tyranny, that’s Tammy Bruce, that’s the gay gestapo. Tammy Bruce is the one that coined the term ‘gay gestapo.’ That’s the gay gestapo at work. You either do what we tell you or you’re going to get punished.”

Roy Moore's Showdown With The Courts Over Gay Marriage Tied To The Work Of Neo-Confederate Leader

Alabama Supreme Court Chief Justice Roy Moore threw his state into turmoil this week when he ordered probate judges to defy a federal judge’s ruling striking down the state’s ban on same-sex marriage and refuse to issue marriage licenses to gay and lesbian couples. Moore, who has a history of making extreme anti-gay statements, insists that the federal judge is the one who is really breaking the law since she violated divine law by ruling for marriage equality.

Moore’s call for statewide defiance of the federal judiciary’s “tyranny” stems from a belief that the Constitution was made to protect biblical commandments, so that anything that goes against his personal interpretation of the Bible is therefore in violation of the Constitution.

Moore shares that belief with a powerful ally: Michael Peroutka, a neo-Confederate activist who is also one of the most influential behind-the-scenes figures in the Religious Right’s reimagining of American law.

Peroutka, who once held a leadership position in the neo-Confederate League of the South and remained a member of the group until it hampered his run for a local office in Maryland last year, promotes this theocratic view of the law through his group the Institute on the Constitution. Speaking at an event at the Institute in 2011, Moore gushed that Peroutka would help lead America to a “glorious triumph” over the federal government’s “tyranny.”

But Peroutka is more than a friend and ideological ally to Moore: he has funded Moore’s activism for more than a decade, and in 2012 bankrolled Moore’s successful campaign for the top seat on the Alabama Supreme Court.

After Moore was removed from his original position on Alabama’s high court in 2003 for defying a federal court order to remove a monument of the Ten Commandments from the state judicial building, Peroutka paid for the ousted judge to go on a national speaking tour to build support for his cause. He also funded a group that held rallies in support of Moore.

Over nine years, Peroutka contributed over a quarter of a million dollars to two groups founded by Moore, the Foundation for Moral Law (which is now run by Moore’s wife Kayla) and the now-defunct Coalition to Restore America.

In 2004, the far-right Constitution Party tried to recruit Moore to run for president on its ticket. When he declined, Peroutka stepped in to run in his place.

This neo-Confederate leader helped to lay the ideological groundwork for Moore’s current standoff with the federal courts, a standoff which many commentators have compared to Alabama Gov. George Wallace’s decision to defy federal law on desegregation.

Peroutka thinks states should defy and ignore federal rulings on gay rights since federal judges have “no authority” to rule in marriage cases, because marriage was already defined by God and the Constitution was designed to enforce such divine arrangements.

Peroutka said last year that such rulings would “coerce” state officials to “declare that which is sinful and immoral” to be “valid and right,” even forcing them to “participate in it.” Such “evil” decisions, according to Peroutka, must be “resisted at every level of government, even the lower levels of government, most especially the lower levels of government,” since local governments are the true “protectors against those who would force these things on us tyrannically from above.”

For example, after a federal judge struck down Kentucky’s ban on same-sex marriage last year, Peroutka insisted that Sen. Rand Paul move to impeach the judge who made the decision, defund the court, and press for his state to defy the ruling: “He should use every influence he has in Kentucky to have people not obey this; the Kentucky legislature, the Kentucky courts, should not obey this, this is not lawful.”

Peroutka also believes that local officials should defy their state legislatures on issues like marriage equality. After Maryland’s general assembly voted in 2012 to legalize same-sex marriage in the state, Peroutka declared that the assembly’s decision to “violate God’s laws” effectively invalidated its legal authority, since any law that contradicts divine law does “not constitute a law – even if it were enacted and signed.”

Using an argument similar to the one Moore is now making in Alabama, Peroutka said that lower-level officials could ignore not only the marriage equality law but any law passed by the state’s general assembly, since it had invalidated itself by breaking biblical decrees: “Is it possible that those who are sworn to uphold the law, such as police and sheriffs and judges and prosecutors, may soon come to the conclusion that the enactments of this body should be ignored because they are based not in law, but in lawlessness?”


For the same reasons, Peroutka believes Roe v. Wade is invalid and supports religious tests for public office, since atheists and non-Christians do not believe in the basis of constitutional law…the Bible. He also deems the teaching of evolution in schools to be “anti-American” because evolution challenges what his reading of the Bible says about the origins of humankind. “The promotion of evolution is an act of disloyalty to America,” he once declared.

In Peroutka’s view, anything that breaks the “organic law,” or biblical law, is automatically unconstitutional.

Peroutka believes that America needs to “go back to what God called marriage, not what the state has perverted the definition to be, but what God called marriage.” Since biblical law doesn’t permit same-sex marriage in his view, then civil law can’t either: “There is no way we are ever going to validate homo- or sodomite-‘unmarriage’ because God defined marriage as between a man and a woman once and forever.”

“I always go back to these two standards: What does God say and what does the Constitution say?” Peroutka explained in 2013.

He added that the United States will have a small, limited government as long as it adheres to biblical standards. But he believes that the Union’s victory in the Civil War — or as he calls it, “The War Between the States” — enabled the federal government to greatly expand its powers, thus undermining the authority of biblical law and leading to such evils as same-sex marriage.

“Ever since then, there’s been this huge black hole of centralized power that’s formed in Washington, D.C.” he said. “People sometimes talk about ‘The War Between the States’ as being about the issue of slavery. I believe that history is written by the winners, it wasn’t about that at all. What it was about was consolidating power into the hands of a few people.”

“[T]he real effect of the war and the Reconstruction after the war was to take the very foundation of our understanding of our rights away from us, that is to say that they come from God, and put them in the hands of men and say that they come from the Supreme Court or they come from the legislature or they come from the executive,” he added.

The end of the Civil War, Peroutka claims, produced an “evil anti-God, anti-Christian revolution” that led to a “tyrannical consolidation of power” in Washington, D.C., undermining the “biblical worldview that acknowledges Christ’s authority over all things.”

Peroutka also contends that the gay rights movement isn’t just “federalizing homosexuality” but “federalizing perversion,” even claiming that the federal government violated the Constitution by imposing civil rights laws on the states.

“[T]he so-called civil rights laws are not law,” he said in 2013. “They never should’ve been passed. They’re not law now, they weren’t law then. They aren’t law now because there is no such thing as a civil right.”

Since Peroutka believes “rights come from God” and not civil government, he argues that all civil rights laws are illegitimate since “the term ‘civil rights’ is kind of an oxymoron. There’s no ‘right’ in the sense of a permanent, fixed, thing that you have, that can be defended, if in fact it comes from the civil government.”

Now Moore is once again putting Peroutka’s words into action, threatening state judges who lawfully issue a marriage licenses to a same-sex couples. Because in the eyes of Moore and Peroutka, their personal reading of the Bible takes precedence over the law of the land.

Alabama Marriage Mess Shows Dangers Of Distorted 'Religious Liberty' Claims

Across Alabama, local judges are openly defying a federal judicial order to grant marriage licenses to same-sex couples. The New York Times reported yesterday that 44 of the state's 67 counties were not granting licenses. The state is a checkerboard, where gay and lesbian Alabamans are locked out of full citizenship across vast swaths of the state based on the whims of local officials.

As many observers have pointed out, this week's events make Americans recall the state's historic resistance to federal court orders striking down segregation. But they show us an image of the future, as well ... or at least the future as the Far Right would have it.

Emboldened by the Supreme Court's distortion of religious liberty in the Hobby Lobby case, some state legislatures are considering bills that would allow government officials to decline to perform marriages that offend them religiously. A number of states are also considering legislation to let people exempt themselves from anti-discrimination and other laws if compliance would offend them religiously. While misleadingly framed as protecting religious liberty, these bills are really intended to allow discrimination and to let conservatives impose their religious beliefs on others.

So what would America look like if we allowed such massive holes to be poked in laws that are supposed to protect everyone? What if lesbian and gay couples were legally treated as outsiders in their home communities, had fewer legal rights than anyone else in those communities, and had to travel anywhere from another neighborhood to another county to find a bakery willing to make a cake for them, a hotel willing to rent them a room for the night, or an employer willing to grant them spousal employment benefits? What if a woman's ability to find adequate healthcare depended on finding an employer and a pharmacist with compatible religious beliefs? What if people's basic rights varied depending on where they were, and upon the prevailing religious beliefs of people in the area? What would such a religiously balkanized nation look like?

It would look a lot like Alabama does today. And it would be ugly.

For decades, the Far Right has fought tooth and nail to impose their religious beliefs through government fiat. They have fought to prevent gays from marrying, to prevent women from exercising reproductive choice, to have public schools indoctrinate other people's children with their own religious beliefs, ... the list goes on. And when they fail at changing the laws to match their religion, they seek exemptions from those laws in the name of "religious liberty."

As People For the American Way Senior Fellow Peter Montgomery has written in his most recent report, that isn't what religious liberty is about. And it isn't a vision of America that is true to our founding principles.

This piece originally appeared in the Huffington Post.

Fischer: Roy Moore Is A Modern Day Martin Luther King, Jr.

On his radio program today, Bryan Fischer hailed Alabama Chief Justice Roy Moore as a modern-day Martin Luther King, Jr. for his order to state probate judges not to issue marriage licenses to same-sex couples after a federal judge struck down the state's gay marriage ban.

Fischer laughably asserted that it is the federal judge, not Moore, "who is standing in the courthouse doorway ... in defiance of both the law and the Constitution," before praising Moore and the probate judges who are refusing to grant marriage licenses to gay couples as the heirs of MLK.

"What Judge Moore and these probate judges are doing is in the finest tradition of Martin Luther King, Jr.," he said. "They are waging the civil rights battle of this decade, using nonviolent protest to do it":

Roy Moore Will Stop Alabama From Turning Into Sodom And Gomorrah

Alabama Chief Justice Roy Moore is on a warpath to thwart the implementation of a federal court ruling that struck down his state’s ban on same-sex marriage, telling probate judges not to issue marriage licenses to same-sex couples even as the Supreme Court has allowed marriages in the state to begin.

Moore, a favorite of Religious Right activists for his anti-gay rhetoric and disregard for federal court rulings, posted a piece on his Facebook page today declaring that same-sex marriage and homosexuality are both wrong just because: “Homosexuality is wrong and we all know it. Marriage of the same sex is wrong and we all know it.”

“This is ground zero in the battle for what God has defined as marriage,” the piece continued. “What He has said about homosexuality. How do you want to leave your country? Will your children, grandchildren ask why did you not fight for what is (was) right?”

The post has since been removed, but we’ve captured it here:

Moore also posted a statement from his wife, Kayla, who leads the Foundation for Moral Law, a legal group founded by Moore. Kayla Moore’s statement cites Leviticus to condemn homosexuality as an abomination and slam the federal court’s ruling.

“Founded by Chief Justice Roy Moore, The Foundation for Moral Law's goal is to be the sword of the spirit for Christians all over who don't want to see Alabama or America become the next Sodom and Gomorrah,” she said. “We will continue our battle against evil, and judicial immorality.”

She called on gay people and their allies to turn away from their “sexual lust” and turn to God: “Today the sacred institution of marriage is being destroyed by the LGBT community and liberal politicians who ‘want change’ as did our President; and they make their rulings based on their emotions and not law. Every human being wants to find meaning in their life, some find it in religion, some find it in material things, certain people find it in sexual lust; however, all they need is Jesus Christ. We as Christians do not condemn homosexuals; instead we point them toward eternal life through Christ Jesus.”

“These are the days of Elijah! There has never been a greater time for the kingdom of God to unite. Recall the story of Elijah, particularly as he stood up to the prophets of Baal,” she said, adding that God is “calling on all of the body of Christ to make a stand against the malignant spirit that envelops our court rooms and society.”

In essence, Judge Granade's ruling in favor of same-sex marriage, is not only in direct violation of the Alabama Constitution, but it also violates "God's Natural Law", as well as the right of the people who voted to ban same-sex marriage in 2006 and won by an overwhelming 81%. In Leviticus, Moses instructs the children of Israel on what God told him, "If a man lies with a male as he does a woman, both of them have committed an abomination. They shall surely be put to death. Their blood shall be upon them" (Lev. 20:13). And in the New Testament Paul warns that same-sex activity is the result of rebellion against God and leads to destruction (Romans 1:26-27). Jesus died for our sins, but He still calls sin what it is. He did not condemn the woman taken in adultery, but He told her, "Go, and sin no more." (John 8:11).

Today the sacred institution of marriage is being destroyed by the LGBT community and liberal politicians who "want change" as did our President; and they make their rulings based on their emotions and not law. Every human being wants to find meaning in their life, some find it in religion, some find it in material things, certain people find it in sexual lust; however, all they need is Jesus Christ. We as Christians do not condemn homosexuals; instead we point them toward eternal life through Christ Jesus. However, we are only a small portion on the kingdom of God; Pastors, Deacons, Youth, and Ministers, These are the days of Elijah! There has never been a greater time for the kingdom of God to unite. Recall the story of Elijah, particularly as he stood up to the prophets of Baal. Elijah's story is in the book of Kings. As you read you see how isolated and alone he felt in the culture in which he lived. Instead of conforming to the ungodly ways of his people God told Elijah to stand up and speak for him and he did.

In such times that we live in we might ask ourselves "is God in control?" Well I assure you, God is very much in control, and these days are special times when God is watching and waiting for his people to fight and stand up and speak for Him. Now we are under grace and not under the law, but the righteousness that comes by faith can be no less than the moral law that comes directly from God. These are not the days of God stepping back and allowing our state and society to submit to the rule of the wicked. Rather, these are the days He is calling on all of the body of Christ to make a stand against the malignant spirit that envelops our court rooms and society. The body of Christ, the church, is the grass roots of the Foundation for Moral Law. The sole purpose of our nonprofit organization is to uphold the Constitution and promote the moral and biblical principles to our government.

Founded by Chief Justice Roy Moore, The Foundation for Moral Law's goal is to be the sword of the spirit for Christians all over who don't want to see Alabama or America become the next Sodom and Gomorrah. The Foundation has always stood alongside God's People. We promote the biblical and moral principles that this country was founded upon. We will continue our battle against evil, and judicial immorality.

NOM Praises Roy Moore For Standing Against 'Judicial Tyranny' On Marriage

On Friday, The National Organization for Marriage joined the growing list of anti-LGBT groups that are coming out in support of Alabama Supreme Court Justice Roy Moore’s attempt to convince his state to defy a federal court ruling overturning a ban on same-sex marriage.

NOM President Brian Brown, whose international petition site CitizenGo was already on record supporting Moore, wrote to NOM supporters on Friday that the many federal court rulings in favor of marriage equality in the wake of the Windsor decision represent not just “bullying” but “tyranny.”

“[T]his is the kind of principled stand we need more of our public officials to take—and we need to take such a stand ourselves, too,” he wrote.

We need to stand up to this kind of bullying whenever we encounter it, but especially when it comes dressed up in the robes of the state authority. Indeed, then we shouldn't call it merely bullying at all, but assign it the true name it deserves: tyranny.

Tyranny is precisely the word, for example, to describe the rash of judicial rulings that has swept across the country since the Windsor decision in summer of 2013 that overturned part of the Defense of Marriage Act. And that's not just my opinion: it's also the opinion of the Chief Justice of the Supreme Court of Alabama, the Honorable Roy Moore.

Justice Moore sent a letter to Alabama's Governor, Robert Bentley, this week urging him to "continue to uphold and support the Alabama Constitution with respect to marriage, both for the welfare of [the state of Alabama] and for our posterity."

Moore's letter came in the wake of a ruling by a federal judge in Alabama that claimed the state's "Sanctity of Marriage Amendment" is supposedly unconstitutional. The amendment was approved by 81% of voters in just 2006, winning every county in the State. The judge's decision is currently stayed pending review by higher courts.

Moore encouraged Governor Bentley: "Be advised that I stand with you to stop judicial tyranny and any unlawful opinions issued without constitutional authority" [emphasis added].

Marriage Supporter, this is the kind of principled stand we need more of our public officials to take—and we need to take such a stand ourselves, too.

In the same email, Brown touted his work pushing anti-LGBT laws overseas, lamenting that “the biggest threats to marriage are unfortunately coming from the West” and accusing Obama and LGBT rights activists of attempting “to export a radical view of marriage to the rest of the world.”

And as we work, let's remember that we're not alone in this fight! Lately, I have had a few opportunities to meet with marriage leaders throughout the globe, such as at the recent Vatican Colloquium on the Complementarity of Man and Woman. The experiences of these countries make it clear that we have a global fight to preserve marriage, and that the biggest threats to marriage are unfortunately coming from the West — led by the United States (and the lawless actions of President Obama) but also including some countries in western Europe.

It's nothing short of a new western imperialism for the Obama administration and his allies among gay and lesbian activists to attempt to export a radical view of marriage to the rest of the world. (Indeed, Pope Francis, on his recent trip to the Philippines, called it a kind of "ideological colonization.") There's something ironic in all this, seeing how President Obama's foreign policy strategy (to the extent he has one) is supposedly predicated on the idea that America must work in concert with the international community. You'd think that advice would apply to Obama's attempt to redefine marriage, as well, since the overwhelming majority of countries around the globe have rejected same-sex ‘marriage'...

And that leads me to a positive bit of news to share in closing this week: if you haven't already heard, the national parliament of Macedonia recently voted overwhelmingly (72-4) to create constitutional provisions limiting marriage to the union of one man and one woman. And the people of Slovakia are very likely to do the same in a national referendum in little over a week's time!

Roy Moore: 'Institution Of Marriage That God Ordained' Is 'Under Sustained Attack From Federal Judges'

In an interview Friday with the American Family Association’s Sandy Rios, Alabama Supreme Court Chief Justice Roy Moore defended a letter he sent to Gov. Robert Bentley urging him to ignore a federal court ruling striking down the state’s ban on same-sex marriage, saying that he was just like abolitionists and desegregationists standing up against the “rejection of God’s law by the federal judiciary.”

Moore told Rios that the case is similar to his famous defiance of a federal court order to remove a monument of the 10 Commandments from a court building because the 10 Commandments spat “symbolized the rejection of God’s law by the federal judiciary” and “now we see the institution of marriage that God ordained under sustained attack from federal judges":

Later in the interview, Rios asked Moore what he would say to Christians who are upset that he’s breaking the law by defying the federal courts.

“This is not against the law, this is for the law,” he said.

Moore, who in 2004 helped lead a campaign to preserve segregationist language in Alabama’s constitution, compared his stand against marriage equality to a defiance of federal courts on slavery or segregation. He added that he also puts abortion rights in that category, because “everybody recognizes Roe v. Wade is not in accordance with the Constitution”:

I think we’ve got to look back. Courts are not always perfect, Sandy. The United States Supreme Court is not always perfect. What would you have done in 1857 when they came out and said slaves were property. If you were a judge, would you have followed that opinion? Or in 1896, I think it is, in Plessy v. Ferguson, when they said that separate but equal was the policy that we had to adhere to, would you have followed it?

We’ve got to realize that courts, whether they’re federal, state, Supreme Court are not always perfect. And sometimes their rulings will contradict the Constitution, as did the United States Supreme Court opinion in Dred Scott, as it did in Plessy v. Ferguson, as it did in Roe v. Wade. Everybody recognizes Roe v. Wade is not in accordance with the Constitution, but you know, there it is as law. So I submit to you that we’ve got to look at these things very carefully.

Roy Moore Supporter: LGBT Rights Advocates Are The Real Anarchists Because They Defy God's Law

When Alabama Supreme Court Justice Roy Moore sent a letter to Gov. Robert Bentley this week urging him to ignore a federal court ruling striking down the state’s ban on gay marriage, many in the Religious Right were elated.

One of those rejoicing is Janet Mefferd, who on her radio program today called Judge Moore’s stand against the federal court a “wonderful thing to see”  and invited Wisconsin pastor Matt Trewhella on to her program to discuss it.

Trewhella has written a book on what he calls the "doctrine of the lesser magistrates," the idea that lower courts and elected officials can defy civil laws that they think defy divine law, and Mefferd told him that she “cracked up” at progressives calling Moore’s position “lawless” because “who has exhibited more lawlessness on the issue of marriage than the left and the pro-homosexual crowd?”

Trewhella agreed: “Absolutely, they’re the ones who are the anarchists here. What Roy Moore is trying to do, and hopefully Gov. Bentley here, is to restore order.”

“This whole idea of judicial supremecy, this whole idea that everyone has to listen to the federal judiciary is absurd, and they’re the ones who don’t have history or law behind them,” he said.

Later in the program, Mefferd falsely claimed that President Obama had refused to enforce the Defense of Marriage Act, prompting Trewhella to repeat that supporters of LGBT rights “are the anarchists” while “people like Judge Moore and Gov. Bentley, they’re the ones that are doing right, they’re the ones actually trying to restore order from the disorder that lawless men have created.”

He went on to explain that marriage equality is “an attack upon Christ” and the next step in a government plot to destroy the family “by imposing licentiousness through law,” starting with the decriminalization of adultery and no-fault divorce laws.

“This isn’t just happening by chance, this is by design,” he said. “We have a federal government that is giving the most base men amongst us the force of law behind their filthy practices.”

As it happens, just this month, Trewhella was invited to share his views in a sermon to the Montana state legislature, which the Christian News Network reports was well received by many in his audience:

“The cold-blooded murder of the preborn, the imposition of homosexual marriage upon our states, no-fault divorce, the decriminalization of adultery, the phalanx of laws created by the State to invade our domestic affairs, disarm the people, seize our property, and harass our persons—all point to the growing tyranny in America,” he declared.

Trewhella then pointed to numerous biblical examples of interposition where the people of God refused to commit evil and chose to obey God rather than men—from the midwives who refused to kill the firstborn male children in Egypt contrary to Pharaoh’s command to Daniel’s refusal to obey a decree issued by King Darius that prohibited him from praying to God.

“Understand, God is the ultimate authority. The Bible says plainly, ‘The Most High rules over the realm of mankind,'” Trewhella preached to the more than 30 lawmakers gathered. “He created us, and thus knows best how we are to be governed. God is the ultimate Law-Giver and Ruler.”

“As God’s minister’s you are to govern according to His rule,” he continued. “You are—as it says in [Romans 13]—to reward those who do good and punish those who do evil. You are not to make law or policy which contradicts His moral law or His word.”

Trewhella said that the majority of the problems in America today stem from moral relativism out of its abandonment of God.

“God’s moral law as the ‘higher law’ provides an objective standard whereby one is able to discern right from wrong, or good from evil. The ‘higher law’ exists independent of the authority of any government, and all governments of men are accountable to it,” he explained. “It is the tyrant state that abhors an objective standard. It does not want to be accountable. It flourishes in a subjective environment. And that is why you are watching Western Civilization crumble before your eyes.”

“May God help you do right by Him,” the pastor and author exhorted.

“I had many [legislators] come up to me and tell me, ‘This is something we need to look into more and learn more about,'” he explained. “When people are taught for the word of God regarding civil government, they are able to see the purpose, functions and limits of civil government,” he said, adding that when citizens remain ignorant of these matters “it makes it much easier for the state to do things beyond its biblical or constitutional limits or restraints.”

Following the presentation of the sermon on Sunday, Trewhella also taught at meetings throughout the week in various cities, including in Plains, Missoula, Butte and Bozeman. In addition to the attendance of local residents, several government officials were present at the meetings as well.

“It’s been really good what’s happened here,” Trewhella said.

Roy Moore’s Approach To The Constitution: 'They Didn't Bring The Quran Over On The Pilgrim Ship'

In January of last year, Alabama Chief Justice Roy Moore denounced the decriminalization of sodomy and the separation of church in state in a speech to Pro-Life Mississippi and Pastors for Life in Jackson, Mississippi. Moore, who first received national attention when he lost his post for refusing to obey a court order to remove a Ten Commandments monument he erected in a courthouse rotunda, recently urged Alabama to flout a federal court’s decision finding that the state’s ban on same-sex marriage is unconstitutional.

Moore’s understanding of the Constitution is pretty well summed up by his belief that Christianity and the Bible should have privileged roles in U.S. government because “they didn’t bring a Quran over on the Pilgrim ship, the Mayflower.”

Upset that the military was allowing “two men getting married in a chapel,” Moore said that America is forgetting about God and only turning to public worship “when we get in trouble, when they bombed the Twin Towers.”

“They don’t acknowledge Buddha,” Moore said of elected officials. “Buddha didn’t create us, Mohammad didn’t create us.”

Moore, who once described homosexuality as a “criminal lifestyle,” also criticized the Supreme Court’s decision to strike down bans “sodomy” bans in Lawrence v. Texas.

He said that the “abominations” of gay rights and legal abortion are now putting America in direct confrontation with God.

Anti-LGBT Groups Cheer On Roy Moore's Standoff With Federal Courts

Earlier this week, Alabama Supreme Court Chief Justice Roy Moore sent a letter to Alabama’s governor urging him to ignore a federal court ruling striking down the state’s ban on same-sex marriage because, he wrote, “the laws of our state have always recognized the Biblical admonition” against homosexuality.

Moore’s arguments may be legally questionable, but his stand against the federal courts seems to be catapulting him back into right-wing hero status that he hasn’t seen since he defied a court order to remove a monument of the Ten Commandments from his court’s rotunda.

Anti-LGBT groups have been praising the move by the viciously anti-gay judge.

Family Research Council President Tony Perkins praised Moore for standing up against marriage equality, which he warned is a threat “not just to our nation’s stability, but to its very survival":

Federal judges may have the last word on marriage -- but they won’t have the final one. That’s becoming abundantly clear in Alabama, the latest state to feel the sting of a runaway court invalidating the will of the people on marriage. In a letter to Governor Robert Bentley (R-Ala.), Chief Justice Roy Moore made that quite clear -- explaining that this isn’t an issue that the federal courts will resolve. Rather, he said, it “raises serious, legitimate concerns about the propriety of federal court jurisdiction over the Alabama Sanctity of Marriage Amendment.”

Unelected judges and a handful of lawyers have been pushing state marriage amendments over like sleeping cows. Meanwhile, stunned Americans have struggled to make sense of a legal system that puts its own political agenda ahead of the expressed will of the people. Like most conservatives, FRC has watched in horror as the courts have robbed tens of millions of Americans of their voice on an issue of critical importance -- not just to our nation’s stability, but to its very survival.

Bryan Fischer, who at the time he made the comments was a spokesman for the American Family Association, also praised Moore for taking “a stand against judicial tyranny”:

State justices can, as Justice Moore has done, defy unconstitutional federal rulings which have overturned marriage amendments. Governors, such as Gov. Bentley, can defy unconstitutional federal rulings by forbidding county clerks to issue marriage licenses which would be in violation of the state constitution. (First Amendment law firms such as the Alliance Defending Freedom have pledged to defend pro bono any clerks who refuse to issue same-sex licenses on grounds of conscience.)

Such actions would most emphatically not represent civil disobedience, but rather the best in civil obedience. An elected official can hardly be charged with rebellion when he is simply fulfilling the oath he took before God to uphold both the federal constitution and the constitution of his own state.

Meanwhile, CitizenGo, a petition hub run in part by National Organization for Marriage President Brian Brown, asked supporters to sign a petition commending Moore for "standing up against the federal tyranny that seeks to impose gay ‘marriage’ on the state of Alabama":

Chief Justice Roy Moore,

Thank you for standing up against the federal tyranny that seeks to impose gay "marriage" upon the state of Alabama. Your bold stand against the redefinition of marriage and the erosion of our nation's moral foundations is an inspiration.

I want you to know that I stand with you as you resist the federal government's unconstitutional demands regarding homosexual "marriage."

I encourage you to fulfill your duty as a lesser magistrate to uphold the Constitution of the United States and the great state of Alabama by resisting these unjust demands.

Meanwhile, the Foundation for Moral Law, the group that Moore led before returning to the Alabama Supreme Court and which is now run by his wife, hasn't reacted to Moore's letter. But the group did respond to the judge’s ruling by acknowledging that “Jesus loves” gay people but “homosexual conduct is still sin, and we must stand firm for what is right.”

“Alabamians approved the 2006 Sanctity of Marriage Amendment by 81% of the vote,” she said, “and the will of the people should not be lightly discarded in favor of an alleged right that is found nowhere in the Constitution.” She added that the Foundation bears no animus toward the plaintiffs in this case or in any other: “Jesus loves them, and He died for their sins as well as for mine. But homosexual conduct is still sin, and we must stand firm for what is right.”

Roy Moore, 2002: Homosexuality Is An Evil, Abhorrent And Destructive 'Criminal Lifestyle'

As we’ve reported, Alabama Chief Justice Roy Moore, who is calling on his state to flout a federal court ruling striking down the state’s ban on same-sex marriage, has a long history of virulent anti-gay activism.

His hostility to gay people has also played a role in his time on the bench.

As AL.com columnist Kyle Whitmore noted yesterday, back in 2002, the Alabama Supreme Court heard a case regarding a custody dispute in which a woman who had previously allowed her ex-husband to have primary custody of their three children sued to modify the custody agreement because of reports that the children’s father had been committing verbal and physical violence against them. The woman, who had since entered a same-sex relationship, lost in the trial court phase but won on appeal, with the appeals court finding that the children’s father did in fact abuse them.

However, the Alabama Supreme Court reversed the appeal court’s decision, finding that the trial court judge “was in a better position to evaluate” the evidence of abuse.

Moore filed a concurring opinion making it clear that he saw the mother’s same-sex relationship as the main reason that she should not have custody over her children.

He cited biblical law, including the story of Sodom and Gomorrah, to make his case that “a sexual relationship between two persons of the same gender-creates a strong presumption of unfitness that alone is sufficient justification for denying that parent custody of his or her own children or prohibiting the adoption of the children of others” since “homosexual conduct by a parent is inherently detrimental to children.”

Homosexuality, Moore wrote, is a “criminal lifestyle” that is “abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature and of nature's God upon which this Nation and our laws are predicated.”

“[E]xposing a child to such behavior has a destructive and seriously detrimental effect on the children. It is an inherent evil against which children must be protected,” he said.

“The effect of such a lifestyle upon children must not be ignored, and the lifestyle should never be tolerated,” he wrote. “The common law designates homosexuality as an inherent evil, and if a person openly engages in such a practice, that fact alone would render him or her an unfit parent.”

I concur in the opinion of the majority that D.H., the mother of the minor children in this case, did not establish a change of circumstances sufficient to transfer custody to her from H.H., the father of the minor children.   I write specially to state that the homosexual conduct of a parent-conduct involving a sexual relationship between two persons of the same gender-creates a strong presumption of unfitness that alone is sufficient justification for denying that parent custody of his or her own children or prohibiting the adoption of the children of others.

In this case there is undisputed evidence that the mother of the minor children not only dated another woman, but lived with that woman, shared a bed with her, and had an intimate physical and sexual relationship with her.   D.H. has, in fact, entered into a “domestic partnership” with her female companion under the laws of the State of California.   But Alabama expressly does not recognize same-sex marriages or domestic partnerships. § 30-1-19, Ala.Code 1975.   Homosexual conduct is, and has been, considered abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature and of nature's God upon which this Nation and our laws are predicated.   Such conduct violates both the criminal and civil laws of this State and is destructive to a basic building block of society-the family.   The law of Alabama is not only clear in its condemning such conduct, but the courts of this State have consistently held that exposing a child to such behavior has a destructive and seriously detrimental effect on the children.   It is an inherent evil against which children must be protected.



For the Court of Civil Appeals to incorporate into its opinion the evidence presented by the mother, while largely ignoring the father's testimony, witnesses, and characterization of the evidence is improper.   It is not an appellate court's duty to overturn a trial court's judgment absent an abuse of discretion by the judge, who observed the witnesses and heard the evidence presented to him.   Nor is it an appellate court's duty to redefine the morals of the State of Alabama.   This Court is correct in upholding the trial court's ore tenus finding and Alabama precedent, which holds that homosexual conduct by a parent is inherently detrimental to children.   Here, the trial court did not abuse its discretion, and the Court of Civil Appeals is clearly in error.



Finally, as if to remove any doubt that homosexuality is disfavored, the court marshaled further legal precedent:

“If we need to say more, if the record of constant quadrimillennial revulsion of moralistic civilizations from the vice that evoked the total and everlasting destruction of Sodom and Gomorrah has been blurred by the mutations of a few years of a single century, we underscore what was said in Horn v. State, 49 Ala.App. 489, 273 So.2d 249 (1973):

Thus, the policy of the law in Alabama-from its civil law to its Criminal Code to the educational programs provided to its public-school students-consistently condemns homosexual activity and the homosexual lifestyle.   The effect of such a lifestyle upon children must not be ignored, and the lifestyle should never be tolerated.



Homosexuality is strongly condemned in the common law because it violates both natural and revealed law.   The author of Genesis writes:  “God created man in His own image, in the image of God He created him;  male and female He created them․ For this reason a man shall leave his father and his mother, and be joined to his wife;  and they shall become one flesh.”   Genesis 1:27, 2:24 (King James).   The law of the Old Testament enforced this distinction between the genders by stating that “[i]f a man lies with a male as he lies with a woman, both of them have committed an abomination.”   Leviticus 20:13 (King James).

...

The State may not interfere with the internal governing, structure, and maintenance of the family, but the protection of the family is a responsibility of the State.   Custody disputes involve decision-making by the State, within the limits of its sphere of authority, in a way that preserves the fundamental family structure.   The State carries the power of the sword, that is, the power to prohibit conduct with physical penalties, such as confinement and even execution.   It must use that power to prevent the subversion of children toward this lifestyle, to not encourage a criminal lifestyle.

The family unit does consist, and always has consisted, of a “father, mother and their children, [and] immediate kindred, constituting [the] fundamental social unit in civilized society.”   Black's Law Dictionary 604 (6th ed.1990).   To reward a parent, who steps outside that unit by committing a “crime against nature” with custody of a child would represent a reprehensible affront to the laws of family government that the State must preserve.   The best interests of children is not promoted by such a subversion of fundamental law, the very foundation of the family and of society itself.   The State may not-must not-encourage the destruction of the family.

No matter how much society appears to change, the law on this subject has remained steadfast from the earliest history of the law, and that law is and must be our law today.   The common law designates homosexuality as an inherent evil, and if a person openly engages in such a practice, that fact alone would render him or her an unfit parent.

Alabama's Notorious Anti-Gay Chief Justice Wants State To Defy Federal Courts On Marriage

Alabama Chief Justice Roy Moore, who first received national attention when he flouted a court decision ordering him to remove a Ten Commandment monument he installed in the state supreme court rotunda, is now calling on his state’s governor to defy a federal judge’s ruling which found Alabama’s ban on same-sex marriage to be unconstitutional.

In a letter today [PDF] to Gov. Robert Bentley, a staunch supporter of the marriage ban, Moore cites a passage from the Gospel of Mark and notes that “the laws of this state have always recognized the biblical admonition stated by our Lord” regarding marriage. He urged the governor to “stop judicial tyranny” and essentially ignore the court’s decision.

It comes as no surprise that Moore, who founded a Religious Right group called the Foundation for Moral Law, has taken such a dogmatic stance on gay rights. Moore has gone so far as to claim that marriage equality is a Satanic plot to destroy America and likened homosexuality to bestiality.

Moore previously admonished “oppressive” judges who rule in favor of marriage equality for “warping the law,” arguing that a constitutional convention may be necessary to add an amendment banning same-sex marriage to the U.S. Constitution.

He also said that marriage equality is literally the work of the Devil, alleging that it is leading to divine wrath in the form of economic and societal suffering. “God must be sad about this,” he said, referring to the “evils” of gay rights and legal abortion.

Moore even warned anti-gay conspiracy theorist Dave Daubenmire that gay rights are really “about the destruction of an institution upon which this nation is based, and when you destroy the institutions upon which the nation is founded, you’re going to suffer for it”

“If you deny that rights come from God, then there is no moral basis for society,” and without that understanding, according to Moore, then society will face “bestiality, homosexuality, sodomy [and] incest.”

Moore said in another interview: “What is happening when a president of the United States can get up and say we need to redefine marriage? You know, when they do that they are attempting to destroy the very foundation on which this country was built.”

“They are approving same-sex marriage, fortunately not the United States government yet but they are trying to get that established across our country, that you could marry somebody of the same sex,” he said. “Our government is doing a lot that is to destroy this country and it is against the people. Unless we wake up and speak out...we’re going to lose our country.”

During an address to an Iowa rally opposing a State Supreme Court decision in favor of marriage equality, Moore drew a comparison to the 2011 Fukushima nuclear plant meltdown: “We’ve got a moral crisis in America. We see the things that are happening in Japan and across the nation, but right here we’ve got a moral meltdown.”

“Today the foundation is being shaken by radical judges, liberal politicians and some in the highest office of our land who would redefine marriage and in doing so would destroy the family as we know it,” he said. “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. And what stops these judges from next saying that three can be similarly situated as two?”

He also used a speech at the Alabama Cattleman’s Association to denounce marriage equality, claiming that if marriage equality becomes law, then “we no longer have a Constitution.” Ruling in favor of same-sex marriage advocates, Moore told one Alabama news program, “makes the court illegitimate.”

Moore even criticized the Supreme Court’s decision to strike down laws banning sodomy,” alleging that it is based on “illogical reasoning.” He wrote in a 2006 column for the anti-gay outlet WorldNetDaily that court decisions promoting the “homosexual agenda” will “undermine the will of the people and open the door for even more deviant moral relationships.”

“Same-sex marriage and sodomy are, simply stated, a slippery slope to polygamy and incestuous relationships,” he wrote. “The foundation of the fabric of our nation is being shaken, and only those who would restore our moral foundation deserve our vote on Tuesday.”

Despite the acceptance of the homosexual agenda by leadership in both political parties, the overwhelming voice of the people of our country is against sodomy, same-sex marriage, and special rights for homosexuals. In 1992, the people of Colorado passed an amendment to their state constitution that denied special rights to homosexuals. The U.S. Supreme Court struck it down in 1996 in the egregious Romer v. Evans, but the ruling could not quell the will of the people. To date, 20 states have approved amendments to their constitutions defining marriage to be solely between a man and a woman, all of which have been passed by sizable majorities of the people. Eight more states are due to vote on such amendments this November, and the results are expected to be similarly overwhelming.

The importance of marriage to society and the dangers inherent in a homosexual lifestyle can hardly be overstated. Marriage is the building block of society and the basis for social and economic stability. Marriage between a man and a woman is an ordinance of God, but sodomy was deemed an abomination by the Creator, whose plan for mankind and succeeding generations was clearly stated in Holy Scripture. His design for our lives was recognized by men and women for centuries in practice and in law.

Activist decisions in the name of “tolerance” by judges and executives of both state and federal government should not be tolerated by the people. Such decisions undermine the will of the people and open the door for even more deviant moral relationships. Same-sex marriage and sodomy are, simply stated, a slippery slope to polygamy and incestuous relationships.

It is time for leadership of both parties in Congress to take action to prevent the further destruction of our morality. “It is substantially true that virtue or morality is a necessary spring of popular government. … Who that is a sincere friend to it can look with indifference upon attempts to shake the foundation of the fabric?” Those words stated by George Washington were true in 1796 when he gave his Farewell Address, and they are true today. The foundation of the fabric of our nation is being shaken, and only those who would restore our moral foundation deserve our vote on Tuesday.

The Personhood Movement: Undermining Roe In The Courts: Part 3

This is the third post in a RWW series on the reemergence of the fetal personhood movement and what it means for the future of abortion rights in the U.S.

Part 1: The Personhood Movement: Where It Comes From And What It Means For The Future Of Choice
Part 2: The Personhood Movement: Internal Battles Go Public
Part 4: The Personhood Movement: Regrouping After Defeat

As we have detailed in previous posts in this series, ever since the anti-choice movement rose to prominence in the wake of Roe v. Wade, it has been divided over how to go about repealing Roe and recriminalizing abortion in the U.S.

Groups like Americans United for Life (AUL) and the National Right to Life Committee (NRLC) have achieved great success in pushing states to adopt incremental measures targeting abortion providers in the name of protecting women’s health and in advocating for national policies — such as the 2003 “partial-birth” abortion ban and the 20-week abortion ban currently being considered by Congress — that attempt to undermine the legal reasoning in Roe by targeting a small segment of abortion procedures.

But the anti-choice personhood movement believes that the incremental strategy is doing too little to end legal abortion. They believe they have a better plan.

The personhood movement argues that small, incremental legal victories cutting off access to abortion will never achieve the ultimate goal of completely criminalizing the procedure — in part because those measures fail to make a moral argument on behalf of the humanity of the fertilized egg and fetus.

At the founding convention of the Personhood Alliance late last year, the chief of staff to Alabama Supreme Court Chief Justice Roy Moore, notorious for his legal fight over a Ten Commandment monument he placed in the courthouse rotunda, discussed an alternate legal strategy to end abortion rights. As Nina Martin has outlined in The New Republic, Moore’s protégé and colleague Justice Tom Parker has been carefully laying out a legal framework to overturn Roe, not by constitutional amendment, but by the legal redefinition of what it means to be a person protected by the law.

Parker, with Moore’s backing, has been building a body of jurisprudence that offers a blueprint for a personhood victory in the courts. In doing so, he’s drawn the attention and praise of anti-choice activists; Liberty Counsel, a right-wing legal group, has called him a “modern-day Wilberforce.”

Since efforts to overturn Roe by passing a Human Life Amendment or a legislative alternative faltered in Congress in the 1970s and 1980s, personhood advocates have focused on the states, passing legislation giving limited rights to fetuses as separate entities from pregnant women. Since 1986, 38 states have passed “fetal homicide” laws identifying fetuses at some or all stages of development as separate victims of crime and in 2004 Congress passed a similar law covering federal crimes. Similarly, in 18 states substance abuse during pregnancy is legally considered child abuse. In Alabama last year, Republicans passed a law allowing judges to appoint lawyers for fetuses. As Elizabeth Nash, senior state issues associate at the Guttmacher Institute, put it in an interview, “all of that is about trying to build up a legal case that personhood starts at fertilization.”

Personhood USA’s 2014 attempt to insert personhood language into Colorado law drew on this legal history, specifically limiting its new definition of personhood to the Colorado criminal code and Colorado Wrongful Death Act. But the proposal was nonetheless widely recognized as an attempt to ban abortion, or at least to set up a legal battle challenging Roe. In fact, Colorado had already passed laws imposing extra penalties for crimes against pregnant women, the purported purpose of the personhood amendment. “They are changing the tone, they are changing the language, they are changing the messaging to try to win,” Nash said.

Parker has chronicled laws treating fetuses as full-fledged humans in certain cases to argue that “[t]oday, the only major area in which unborn children are denied legal protection is abortion, and that denial is only because of Roe.” He has urged the Supreme Court to address the issue at the next chance it gets.

Parker and Moore’s strategy relies on what the personhood movement’s proponents believe is a loophole in Roe v. Wade that would allow anti-abortion advocates to effectively undo the decision without a constitutional amendment or a Supreme Court friendlier to their cause. In Roe, the Justices rejected the idea of fetal personhood. Justice Blackmun wrote in his majority opinion that “no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment,” noting, “If this suggestion of personhood is established, the appellant's case, of course, collapses...for the fetus' right to life would then be guaranteed specifically by the Amendment.”

A federal bill that currently has 132 cosponsors in the House and 21 in the Senate takes aim at this supposed loophole in Roe, simply declaring that “the right to life guaranteed by the Constitution is vested in each human being," which includes “each member of the species homo sapiens at all stages of life, including the moment of fertilization, cloning, or other moment at which an individual member of the human species comes into being.”

Sen. Rand Paul of Kentucky, the chief sponsor of the Senate bill, signed a fundraising email for the pro-personhood National Pro-Life Alliance in November, arguing that his was the strategy that would work:

The Supreme Court itself admitted  if Congress declares unborn children 'persons' under the law, the constitutional case for abortion-on-demand 'collapses.'

Alabama’s Supreme Court is the most prominent court to give a serious hearing to the personhood strategy, long considered by even some in the anti-choice movement to be a crackpot theory and a potential political and legal disaster. As recently as 2009, Clarke Forsythe, senior counsel at Americans United for Life, wrote in the National Review that the so-called “personhood loophole” was an “urban legend” and those pursuing it were “heading toward a brick wall.” Forsythe argued that in 1992 Casey decision, the Supreme Court had shifted the abortion debate from the personhood of fetuses to the rights of women, and that that was therefore the ground that the anti-choice movement should be playing on. “The real challenge for pro-lifers in 2009 is to effectively address the assumption that abortion is good for women,” he wrote, presaging AUL’s revamped woman-focused messaging.

Even more alarming to the personhood strategy’s detractors in the anti-choice movement is the possibility that a personhood challenge to Roe could create the opportunity for a Supreme Court ruling that would actually strengthen constitutional protections for abortion rights. Justice Ruth Bader Ginsburg, for instance, has said that she believes abortion rights should be secured under the equal protection clause of the 14th Amendment, making the issue more clearly about the rights of women. In 2010, Austin Ruse of the Catholic Family & Human Rights Institute (C-FAM) wrote, “If a personhood amendment comes before this court, a new and terrifying decision may put the pro-life movement back a quarter century or more.”

In 2007, as the anti-choice movement’s schism over a ban on so-called “partial-birth” abortion was gaining national attention, Georgia Right to Life, which was at the the state affiliate of NRLC, worked with legislators to introduce a state constitutional amendment defining a “person” under state law as “including unborn children at every state of their biological development, including fertilization.”

Although the Georgia amendment was based on language originally drafted as a federal constitutional amendment by NRLC, NRLC’s chief counsel James Bopp, Jr. tried to shut it down. In a lengthy and frank memo to his fellow anti-choice activists, Bopp contended that such an amendment would be immediately struck down in federal courts and, if it made it to the Supreme Court, could give the court’s majority the opportunity to rewrite Roe in the way favored by Ginsburg. The state-level personhood strategy, he cautioned, was “presently doomed to expansive failure.”

Instead, Bopp said, the anti-choice movement should continue its incremental strategy, which was succeeding in curtailing access to abortion while keeping the issue in the public eye. He wrote that the “partial-birth” abortion law had been a successful example of this strategy because it “forced the pro-abortion camp to publicly defend a particularly visible and gruesome practice.” Acknowledging that “most pro-lifers” believe that abortion should only be available to save the life of a pregnant woman, he warned that absolutist, no-exceptions approaches like personhood were both legally unwise and poor public relations:

By contrast, the pro-life movement must at present avoid fighting on the more difficult terrain of its own position, namely arguing that abortion should not be available in cases of rape, incest, fetal deformity, and harm to the mother. While restricting abortion in these situations is morally defensible, public opinion polls show that popular support for the pro-life side drops off dramatically when these “hard” cases are the topic. And while most pro-lifers believe that a consistent pro-life position requires permitting abortion in only the rare circumstances where it is necessary to save the life of the mother, some pro-lifers believe that there should not even be an exception to preserve the life of the mother. Other pro-lifers advocate exceptions for rape or incest. This is an important debate to have, and we should be ready to convince the public of the need for few, if any, exceptions to laws prohibiting abortion when such laws can be upheld. However, since that is currently not the case, such a debate is premature and would undermine public support for the pro-life position.

Responding to Bopp’s memo, the conservative Thomas More Law Center, which drafted the Georgia amendment, argued that the incremental strategy had taken too long and done too little and that “after 34 years of abortion on demand through all nine months of pregnancy, it is time to rethink pro-life strategy.”

“[T]he central holding of Roe v. Wade remains the primary obstacle to any meaningful pro-life initiative that seeks to end abortion,” wrote Thomas More attorney Robert J. Muise. “To remove this obstacle, a case must be presented to the United States Supreme Court that challenges the central premise of Roe — that the unborn is not a person within the meaning of the law.”

If personhood laws were to succeed in the courts, the legal implications would be immense and unpredictable.

The ambiguous wording of personhood measures has led to concerns that they could be interpreted to outlaw oral contraception, IUDs and in-vitro fertilization. But birth control is not the only issue. As the National Advocates for Pregnant Women’s Lynn Paltrow and Fordham sociologist Jeanne Flavin have documented, laws granting legal rights to fetuses outside the context of abortion have led to hundreds of cases of pregnant women being arrested or otherwise apprehended after suffering miscarriages or for alleged drug and alcohol use deemed to be harmful to the fetus.

In countries that completely criminalize abortion — the goal of the “pro-life” movement in the U.S. — pregnant woman can find themselves in terrifying situations: recently in El Salvador, a woman was sentenced to 30 years in prison for murder after suffering a miscarriage.

As Paltrow told Newsweek in 2012, “There’s no way to give embryos constitutional personhood without subtracting women from the community of constitutional persons.”

By redefining what it means to be a person under the law, personhood measures could also have a broad legal impact on issues unrelated to reproductive rights, threatening to upend everything from inheritance law to census results. In 2014, the Colorado Bar Association opposed the state’s personhood ballot measure, warning that the vaguely worded measure would have “potentially serious, unintended and unknown consequences for Colorado lawyers…From areas of Family Law to Probate Law to Real Estate Law, as well as the explicit effect on Criminal Law and Wrongful Death statutes, this Amendment could create uncertainty and endless litigation.”

Daniel Becker, the former leader of Georgia Right to Life and founder of the Personhood Alliance, also sees the personhood issue as extending beyond abortion rights, but in a different direction. The final chapter of Becker's 2011 manifesto, "Personhood," is written in the form of a science fiction story set in a "post-human future" in which computers have gained consciousness, procreation has been moved to laboratories, and a "specialized sub-class of human-animal hybrids" has been developed to perform menial labor. The anti-abortion rights movement, he argues, will cease to be relevant in coming battles over biotechnology if it remains "at its heart, anti-abortion as opposed to pro-sanctity of human life." He argues that only by embracing full "personhood" rights for zygotes and fetuses will the movement remain viable in the future.

The personhood movement, while it has hope in the legal system, also recognizes that it won’t get far without winning hearts and minds. In the final post in this series, we’ll look at the movement’s efforts to reorganize in the wake of electoral defeats.

Mo Brooks: Immigration Action Will Lead To 'Insolvency And Bankruptcy Of Our Government'

Rep. Mo Brooks, R-Ala., said last week that President Obama’s executive action granting temporary deportation relief to some undocumented immigrants was part of a plot to “dilute the vote of American citizens by bringing in millions of foreigners who are going to be dependent on welfare and handouts and hence will be dependent on the Democratic Party for their livelihoods.”

Brooks told talk show host Dale Jackson that if not for the immigration reform bill signed by President Reagan in 1986, “Barack Obama probably would not have been president” and “Obamacare probably never would have passed.” (Rep. Steve King made similar remarks earlier this year.)

“And of course ultimately what’s going to happen is insolvency and bankruptcy of our government because we cannot continue this welfare path that we are on,” he added.

This is amnesty, and the long-term goal of this president is to reverse the will of the American people as evidenced in 2010 and 2014 and to dilute the vote of American citizens by bringing in millions of foreigners who are going to be dependent on welfare and handouts and hence will be dependent on the Democratic Party for their livelihoods. That’s what this is about, is to change elections five, 10, 15, 20 years from now. But for the bipartisan amnesty bill of 1986, Barack Obama probably would not have been president, and they know that. Obamacare probably never would have passed, and they know that.

And they don’t want to take that chance in future elections, so they see this as planting a seed that over many, many years will ripen into many Democratic Party victories. And of course ultimately what’s going to happen is insolvency and bankruptcy of our government because we cannot continue this welfare path that we are on.

How 2014's Elections Will Influence 2016's Voting Rights

Voters across the country trying to cast votes in Tuesday’s elections ran into hurdles erected by Republican legislatures, governors and secretaries of state. Along with mechanical glitches and human error — which occurred in states with leaders on both sides of the political spectrum — voters faced new laws and policies that made it harder to vote.

In Alabama, a last-minute decision by the attorney general barred people from using public housing IDs to vote. Voter ID laws in North Carolina and Texas sowed confusion. Georgia lost 40,000 voter registrations, mostly from minorities. In all, the group Election Protection reported receiving 18,000 calls on Election Day, many of them having to do with voter ID laws. The group noted that the flurry of calls represented “a nearly 40 percent increase from 13,000 calls received in 2010.”

In the presidential election year of 2016, it looks unlikely that those problems will subside — especially if Congress fails to restore the Voting Rights Act. The two states that had the closest vote tallies in the last presidential election — Florida and Ohio — will go into the presidential election year with Republicans controlling the offices of governor and secretary of state and holding majorities in their state legislatures.

In Florida, Republican Gov. Rick Scott, who won reelection yesterday, will be able to appoint a secretary of state and will enjoy the support of a veto-proof Republican majority in the state House.

In Ohio, controversial Republican Secretary of State Jon Husted won reelection on Tuesday, along with Gov. John Kasich. They’ll be able to work with a strengthened GOP majority in the state legislature.

In North Carolina, where a Republican legislature and governor have cracked down on voting rights, the GOP held onto its majority. Republican secretary of state candidates in the swing states of Colorado, Iowa and Nevada also won elections yesterday.

Two influential elections for voting rights also took place in states unlikely to be presidential swing states. Kansas Secretary of State Kris Kobach, a national ringleader for advocates of restrictive voting laws, won reelection. In Arizona, which has been working with Kansas to defend their states' respective tough voting requirements, Republican candidate Michele Reagan also won her contest.

One exception to the trend is Pennsylvania, where Republican Gov. Tom Corbett, who backed a harsh voter ID law that has since been struck down in the courts, lost to voting rights supporter Tom Wolf. Although Wolf will contend with a Republican majority in the state legislature, he will be able to appoint a secretary of the commonwealth.

Rick Perry, Ron Johnson And Jeff Sessions To Join Anti-Muslim Activists At Florida Beach Resort Confab

FrontPageMag editor and increasingly unhinged anti-Obama yeller David Horowitz is hosting his annual “Restoration Weekend” for anti-Muslim activists at a beach resort in Florida this month. This year, Horowitz has recruited an impressive slate of Republican politicians, including Texas Gov. Rick Perry, Wisconsin Sen. Ron Johnson, Alabama Sen. Jeff Sessions, Oklahoma Rep. Jim Bridenstine to partake in the event’s offerings of golf, spa treatments, and Muslim-bashing.

Joining the GOP politicians at the Palm Beach weekend will be anti-Muslim activists including the Family Research Council’s Jerry BoykinJihadWatch’s Robert SpencerNational Review columnist Andrew McCarthy and, as Horowitz announced this weekend on Newsmax, far-right Dutch politician Geert Wilders.

Conservative pundits Ann Coulter, Michael Reagan and Ben Shapiro will also be at the event, according to its website, along with FreedomWorks CEO Matt Kibbe, Heritage Foundation economics chief Stephen Moore and Wall Street Journal editorial board member Kimberly Strassel.

Horowitz organizes and funds the annual Restoration Weekend through his David Horowitz Freedom Center — attendees pay between $1,750 and $20,000, but the group’s most recent available tax return shows the 2012 event didn’t even break even. At past events, Horowitz has attracted GOP luminaries including Sen. Ted Cruz, former Sen. Jim DeMint, Rep. Steve King and Rep. Michele Bachmann. All apparently undeterred by their host’s record of anti-Muslim extremism, including accusing former Hillary Clinton aide Huma Abedin and Republican anti-tax crusader Grover Norquist (whose wife is Muslim) of being secret Muslim Brotherhood agents.

In just the past year, Horowitz’s commentary has moved even further to the fringe. As the Justice Department launched an investigation of the shooting of an unarmed black teen in Ferguson, Missouri, this summer, Horowitz accused Attorney General Eric Holder of leading a black “lynch mob.” A day earlier, Horowitz said he was “sure” President Obama was secretly a Muslim because “he’s a pretend Christian in the same way he’s a pretend American.”

Such anti-Obama conspiracy theories have a welcome place at Horowitz’s Restoration Weekends. At last year’s event, for instance, Rep. Trent Franks of Arizona agreed with Robert Spencer’s statement that President Obama is either a secret Muslim or just acting like one:

Wilders, who has spoken at past Horowitz-affiliated events, including at least one Restoration Weekend, is currently on a U.S. tour that included lunch at the Capitol with Bachmann. Wilders, one of the most fiercely anti-Islam voices in Europe has compared the Quran to Mein Kampf and this year lost some prominent members of his own party when he targeted Moroccans living in the Netherlands to stir up support before the European elections.

Head Of Alabama Christian Coalition Opposes Anti-Sharia Amendment: 'This Is A Tremendous Waste Of Effort'

When voters in Alabama go to the polls next week, one issue they will be asked to decide is whether the state constitution needs to be amended to outlaw Islamic Sharia law through Amendment 1, which would "prohibit the application of foreign law in violation of rights guaranteed natural citizens by the United States and Alabama Constitutions."

A similar amendment in Oklahoma was struck down as unconstitutional.

Normally, these sorts of efforts are nothing more than attempts to gin up right-wing activists by enshrining Christian privileges in states where Christians already dominate all levels of government. In fact, so obvious is this strategy and so needless is this amendment that even Randy Brinson, president of the Alabama Christian Coalition, has come out against it:

"This is a tremendous waste of effort. It's is a waste of time and it  costs money," Brinson said Thursday morning, talking with AL.com between seeing patients at his medical practice in Montgomery. "This just creates a whole new headache for people involved in foreign adoptions or who get married in another country. My frustration is that people -- good people -- get behind something like this just because they want to score political points with the Christian community. But it's redundant - you don't need to amend the constitution to address these issues. I just don't think they thought through this particular thing."

...

"I understand the sentiment behind this, but Sharia law is not going to be implemented in Alabama, it just isn't," Brinson said. "And this would just be another stigma for Alabama, another way of saying to other countries: 'We don't respect your laws.'"

"Alabama law - or laws from outside the state -- either comports with the law of the United States or they don't," Brinson said. "This is just silliness. It's all something that lawmakers can trumpet back to constituents that they're protecting Christian values, but they need to be working on other stuff."

The Supreme Court's 2014-2015 Term: PFAW Member Telebriefing

Yesterday, People For the American Way members participated in a telebriefing to discuss the Supreme Court’s upcoming term and to preview some of the important cases the Court will be hearing this year. The call was kicked off by PFAW President Michael Keegan and moderated by PFAW Director of Communications Drew Courtney. PFAW’s Senior Legislative Counsel Paul Gordon reviewed highlights of his recent report previewing the Supreme Court’s upcoming term and answered questions from members. Also on the call and answering questions were Senior Fellow Elliot Mincberg and Executive Vice President Marge Baker.

Among the cases Gordon previewed were Young v. UPS, Integrity Staffing Solutions v. Busk, Mach Mining v. EEOC, Holt v. Hobbs, and Alabama Democratic Conference v. Alabama / Alabama Legislative Black Caucus v. Alabama. The issues addressed in these cases range from employment discrimination and workers’ rights, to religious liberty and voting rights.

He also discussed potential cases that the Court could still add for this term, which included cases on marriage equality, the Affordable Care Act, and contraception coverage by religious nonprofits—the “sequels to Hobby Lobby.”

Members’ questions focused on how the country can move forward to change some of the more damaging decisions like Citizens United, and what each person could do to effect change and impact the courts. Emphasizing what is at stake this election, both PFAW President Michael Keegan and Gordon called on people to vote in November because “when you vote … for the Senate, you are voting for the next Supreme Court justice.”

Listen to the full audio of the telebriefing for more information.

 

PFAW

PFAW Foundation’s Supreme Court 2014-2015 Term Preview

To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: September 25, 2014
Subject: PFAW Foundation’s Supreme Court 2014-2015 Term Preview


The beginning of a new Supreme Court term has become a time to worry, “What’s next?” In the past two terms alone, often in 5-4 decisions, the Roberts Court has severely undermined the Voting Rights Act, continued its assault on the American people’s efforts to limit money in politics, strengthened the hand of employers who discriminate, significantly eroded church-state separation, discovered religious rights for for-profit corporations seeking to deny female employees needed contraception coverage, undercut unions, and found ways to help large corporations bypass laws designed to limit their power over small businesses and ordinary people.

As bad as the Roberts Court has been, there have also been some good decisions in the most recent terms. For instance, the Court struck down the odious Defense of Marriage Act, upheld the EPA's general authority to issue regulations on greenhouse gas emissions from power plants, and unanimously recognized our Fourth Amendment right to privacy concerning our smart phones.

The 2014-2015 Term is set to begin on October 6, the traditional First Monday in October, and the Court will be hearing a number of important cases. At the same time, perhaps half the cases it will hear this term have not been determined or announced, and there is substantial speculation on whether it will hear cases on several high-profile issues, marriage equality most prominent among them. Below is a summary of some of the major cases the Court may hear this term, along with cases already scheduled that we will be following.


CASES THAT THE COURT MIGHT HEAR

MARRIAGE EQUALITY

If the Court accepts a marriage equality case, it will obviously become the blockbuster case of the term (and perhaps the decade). The Court has already been asked to hear appeals of pro-equality rulings by three circuit courts: From the Tenth Circuit are Herbert v. Kitchen (Utah) and Smith v. Bishop (Oklahoma). From the Fourth Circuit are Rainey v. Bostic, Schaefer v. Bostic, and McQuigg v. Bostic (all Virginia). From the Seventh Circuit are Bogan v. Baskin (Indiana) and Walker v. Wolf (Wisconsin). While states and government officials who lost in the lower courts are filing the appeals, the couples who won the cases are also urging the Court to hear the appeals, so there can finally be a national resolution to the issue.

Should one of the remaining circuit courts uphold a state marriage ban, the resulting split among circuits on such a major constitutional issue would almost guarantee review by the Supreme Court. But if every circuit continues to rule the same way, the Justices might decide to let the issue be resolved there.

Conservatives like Scalia and Thomas, who have in case after case shown their hostility to LGBT equality but may be unsure of how Kennedy would vote, might not be willing to risk a Supreme Court precedent that same-sex couples have a constitutional right to marry. From their perspective, if they can’t change the outcome around the country, why make it worse by adding a jurisprudential nightmare from the nation’s highest court that would taint American law for decades to come?

For Justices likely to recognize the constitutional right to marriage equality, the calculation might be different. They, too, not knowing Kennedy’s position, might not want to risk a 5-4 ruling in the “wrong” direction on a major constitutional and societal issue. But even if they could be certain of being in the majority, they might find advantages to having the Court stay out. Justice Ginsburg, for instance, has suggested publicly that Roe v. Wade went “too far, too fast,” provoking a backlash that could otherwise have been avoided. If the legal question of marriage equality is being decided rightly in all the circuit courts, some Justices might rather leave well enough alone. In fact, Justice Ginsburg told a group of law students in mid-September that without a circuit split, she saw “no urgency” for the Court to take up the issue now, although she added that she expects the Court to take it up “sooner or later.”

Should the Court grant cert on one or more of the appeals, it could answer a number of critically important questions in addition to whether states can prohibit same-sex couples from marrying.

Exactly which constitutional right do the bans violate? While numerous courts have ruled in favor of same-sex couples, they have been anything but unanimous in their reasoning: Some have suggested that the bans violate the Due Process Clause, because the longstanding, fundamental right to marry includes the right to marry someone of the same sex. Other judges indicate that the bans violate the Equal Protection Clause because they deny the right to marry based on the sex of the people seeking to get married. Still others suggest that the bans violate the Equal Protection Clause because they discriminate against gays and lesbians. While the different legal rationales would all have the same immediate result (marriage equality), they could create very different legal precedents and have very different impacts down the line as lower courts consider other types of discrimination, whether aimed at gays and lesbians, at transgender people, or at others.

A Supreme Court ruling might decide what level of scrutiny the Equal Protection Clause requires for laws that discriminate against gay people, an issue not squarely faced in previous cases. Most government classifications are subject to – and easily pass – “rational basis” scrutiny by the courts: The law is constitutional as long as it’s rationally related to some legitimate government interest. (The Court has said that animus against gays and lesbians is not a legitimate purpose, which in the past has let it bypass the question as to whether anti-gay laws warrant more scrutiny from the courts.)

But a few types of laws trigger heightened Equal Protection scrutiny. Sex-based classifications are subject to intermediate scrutiny: They must be substantially related to an important government interest. Race-based classifications are generally subject to strict scrutiny, the highest level: They must be narrowly tailored to achieve a compelling government interest. If the Court rules that laws discriminating against lesbians and gays warrant some level of heightened scrutiny, that would have an enormous impact nationwide on all kinds of laws that discriminate against lesbians and gays, not just marriage bans.

The Court’s discussion of this issue could also shed light on whether eliminating private discrimination against LGBT people is (in the Court’s eyes) a compelling government interest. This could have an enormous impact as courts consider right wing challenges to anti-discrimination laws on the basis of the federal Religious Freedom Restoration Act or state-law analogs.


ACA SUBSIDIES

Opponents of the Affordable Care Act strategically launched lawsuits in four different circuits challenging federal subsidies for millions of Americans buying health insurance on federally-run exchanges. The circuits were apparently selected to maximize the possibility of a circuit split, which in turn would maximize the likelihood of getting the case heard by the Roberts Court, which (they hope) would deliver a crippling blow to Obamacare. Decisions have been reached in two of the circuits, although one has since been vacated.

Section 1311 of the ACA says states should set up insurance exchanges, while Section 1321 of the Act says the federal government can set one up if a state doesn't. Subsidies are available for less well-off people getting health insurance through an exchange, based on the amount the person pays for the insurance s/he is enrolled in through an exchange "established by the state under [section] 1311" of the ACA. The law’s opponents hope to have the Supreme Court rule that Congress intended for subsidies to be unavailable to Americans purchasing insurance through the federally-established exchanges that the law calls for in cases where the state does not step in. In other words, the argument is that Congress intended to undercut the financial viability of the law and thwart its central purpose.

A unanimous panel of the Fourth Circuit rejected this wild claim in King v. Burwell. However, two far right judges on the D.C. Circuit formed a majority in a three-judge panel ruling actually agreeing with the Obama care opponents in Halbig v. Burwell. Dissenting Judge Harry Edwards recognized the lawsuit as a “not-so-veiled attempt to gut the Patient Protection and Affordable Care Act,” noting that “[i]t is inconceivable that Congress intended to give States the power to cause the ACA to crumble.” The full D.C. Circuit subsequently vacated the ruling and will consider the issue en banc, and most observers expect a ruling more like the Fourth Circuit’s.

But even if that happens, there are still lawsuits percolating in Indiana (Seventh Circuit) and Oklahoma (Tenth Circuit), so the hoped-for circuit split may yet occur. If it does, the Roberts Court is almost certain to consider the issue. While the case is transparently political and legally weak, that did not stop the conservative Justices when it came to the Commerce Clause challenge to the individual mandate.


CONTRACEPTION COVERAGE AND RELIGIOUS NONPROFITS

The Roberts Court may hear one or more cases involving religious nonprofits that oppose the ACA’s contraception coverage requirement, in a sequel to Hobby Lobby v. Burwell. In that case, the Roberts Court gave certain for-profit corporations religious liberty rights under the Religious Freedom Restoration Act (RFRA), then completely rewrote the law to give the chain store the right to “exercise” its religion by refusing to comply with the ACA’s contraception coverage requirement.

Under RFRA, a federal law cannot impose a substantial burden on a person’s religious exercise unless it is in furtherance of a compelling governmental interest, and it is the least restrictive means of doing so. In Hobby Lobby, the Roberts Court concluded that the corporation and its owners suffered a “substantial” burden” on their religious exercise because the owners were offended by the contraception coverage requirement, even though it did not restrict or burden what they may believe or do. The majority also concluded that the law was not the least restrictive means of furthering the government’s interest in women’s health, because the Administration offers religious nonprofits an accommodation: They are exempt if they simply sign a form certifying that they are a religious nonprofit that objects to the provision of contraceptive services, and provide a copy of that form to their insurance issuer or third-party administrator, which then has the responsibility to pay for and provide the coverage. (Churches, in contrast, are wholly exempt.) The Roberts Court concluded that the federal government can make this accommodation available to for-profit corporations, meaning the coverage requirement is not the least restrictive means of achieving the ACA’s goal.

But three days later, the Court issued a temporary injunction against enforcing even this accommodation against Wheaton College, a non-profit religious institution that argued that the accommodation substantially burdens its religious freedom. This prompted a furious dissent from the three women Justices. Although the merits of the case are still being argued before a lower federal court, this was an ominous sign of how the Roberts Court will address the legal question when it inevitably reaches the high court.

Another high-profile case (or one similar to it) that may reach the Court involves Little Sisters of the Poor. This religious nonprofit organization, too, has a religious objection to the accommodation that was designed to meet its religious objections, arguing that the form is like a permission slip that would trigger contraception coverage, making the nuns complicit in sin. However, the Little Sisters’ insurer is classified as a “church plan,” which is actually exempt from the ACA requirement. So regardless of whether the Little Sisters signed the form, their employees would still not have the contraception coverage. Nevertheless, last January, while its RFRA suit against the contraception coverage provision was before the Tenth Circuit (where it is still pending), the Supreme Court enjoined the federal government from enforcing the law until a final resolution on the merits.

It seems likely that there will be a request that this issue be considered by the Supreme Court at some point this term, either through one of these cases or one similar to them.


CASES CURRENTLY BEFORE THE COURT


EMPLOYMENT DISCRIMINATION AND WORKERS’ RIGHTS

Young v. UPS: Discrimination on the basis of pregnancy

The Supreme Court is to decide to what extent employers can treat pregnant workers temporarily unable to work differently from other workers temporarily unable to work.

This case involves Peggy Young, a pregnant employee of UPS with temporary medical restrictions on how much she could safely lift. UPS did not make any accommodations for her, such as temporary alternative work. As a result, she spent several months on unpaid leave, during which she lost her medical coverage.

In 1976, the Supreme Court ruled that discriminating against employees who are pregnant was not sex discrimination under Title VII. Congress corrected that interpretation of the law in 1978 with the Pregnancy Discrimination Act (PDA), which has two relevant provisions. First, it specifies that sex discrimination includes discrimination on the basis of pregnancy, childbirth, or related medical conditions.

The second provision explains how to apply that general principle: It says that women affected by pregnancy “shall be treated the same for all employment-related purposes … as other persons not so affected but similar in their ability or inability to work.” This establishes a basis of comparison. So while a typical sex discrimination case looks at how a female plaintiff is treated in comparison to similarly situated men, a PDA case looks at how she is treated in comparison to non-pregnant workers with similar ability (or inability) to work.

UPS’s collective bargaining contract calls for UPS to accommodate temporarily disabled employees if the disability is due to an on-the-job injury, or if they have lost their DOT certification to drive. UPS also accommodates employees who have a permanent impairment under the Americans With Disabilities Act. UPS says its policy is “pregnancy-blind:” They claim they are treating Young the same way they’d treat a non-pregnant employee whose injury doesn’t fit any of the above conditions.

But Young argues that isn’t the proper analysis under the PDA. She points out that UPS would have made an accommodation for someone “similar in their ability or inability to work” to her if they were in one of those three categories. So, she concludes, the plain text of the PDA requires UPS to accommodate her, as well.

Integrity Staffing Solutions v. Busk: Overtime pay for workers at warehouse distribution centers

The Supreme Court is to decide if employers can deny overtime pay to employees at “customer fulfillment” distribution centers for the time they spend waiting for mandatory security screenings.

This is a class-action lawsuit brought by Jesse Busk and Laurie Castro, two former employees of Integrity Staffing Solutions, which provides workers to work in the warehouses of companies like Amazon.com. At the end of the shift, the company requires every employee to go through a security check before they leave the facility to make sure they aren’t stealing the merchandise. The employees wait as long as 25 minutes to be searched. Busk and Castro claim that they should have been paid overtime for this time under the Fair Labor Standards Act (FLSA), as should all current employees, as well.

FLSA requires overtime pay when a covered employee works more than 40 hours in a workweek. In 1947, Congress helped define what counts as “work” by passing the Portal-to-Portal Act (PPA), which says that FLSA’s overtime requirement doesn’t apply to activities that are “preliminary” or “postliminary” to an employee’s primary job responsibilities. In a 1956 case called Steiner v. Mitchell, the Supreme Court interpreted the PPA as requiring overtime only for tasks that are an “integral and indispensable part of the principal activities for which covered workman are employed.”

Busk and Castro say that any activity required by and benefitting the employer (such as the security searches) are part of the actual job, not “postliminary” to it, so they count as time at work under FLSA and should generate overtime pay. They get support from an amicus brief submitted by the National Employment Lawyers Association, which details how loss-prevention activities have become integrated into the modern retail work routine, making searches like those at issue here part of an employee’s principal activities.

The workers won at the Ninth Circuit, but the court used different reasoning: that the searches are “postliminary” (so the Portal-to-Portal Act applies), but that they are an “integral and indispensable part” of the workers’ principal activities and therefore subject to overtime pay. Integrity (supported by an amicus brief from the Obama Administration) asserts that the searches are “postliminary” to work, are not an “integral and indispensable part” of the employees’ principal activities and, therefore, don’t trigger the overtime requirement.

Part of the company’s argument seems to be a results-based pitch to a corporate-friendly Court: In its certiorari petition urging the Justices to hear its appeal, Integrity Staffing wrote that since the Ninth Circuit ruling, “plaintiffs’ lawyers have brought nationwide class actions against a number of major employers—including Apple, Amazon.com, and CVS—seeking back pay (plus overtime and penalties) for time spent in security screenings.” Notice that it isn’t employees who are suing, but “plaintiffs’ lawyers,” a framing that is red meat for right-wing ideologues. This argument also seems to have less to do with discerning congressional intent and more to do with protecting large corporations.

Mach Mining v. EEOC: Pre-lawsuit settlement efforts by the EEOC

The Supreme Court is to decide if employers can escape liability for illegal discrimination by arguing that the EEOC failed to make a sufficiently good-faith attempt to reach a settlement with the employer.

Mach Mining has never hired a woman for a mining position. A woman who had been turned down several times for a coal mining job filed a sex discrimination complaint with the Equal Employment Opportunity Commission, a step that Title VII requires before filing a lawsuit. EEOC looked into the allegation, found it had merit, and – again, as required by Title VII – sought to negotiate an end to the alleged sex discrimination “by informal methods of conference, conciliation, and persuasion” before suing. After several months without success, the EEOC notified the company that it felt further efforts would be futile and initiated a lawsuit. Mach Mining says the case should be dismissed on the grounds that the EEOC didn’t make a good-faith conciliation effort. In response, the EEOC says Title VII doesn’t allow such a defense.

While several other circuits have ruled otherwise, the Seventh Circuit in this case concluded that Title VII cannot be interpreted to allow courts to inquire into the adequacy of the EEOC’s conciliation efforts. For one thing, Title VII has no express provision for an affirmative defense based on a defect in the EEOC’s conciliation’s efforts. It also calls for the EEOC to “endeavor” to end the discrimination through “informal methods of conference, conciliation, and persuasion.” If it can’t reach a result “acceptable to the Commission,” it can sue. The Seventh Circuit interpreted this as giving the EEOC great deference.

The court also noted that Title VII makes the process confidential, with penalties for making the information public without the consent of everyone concerned. That could prevent the EEOC from showing the court the evidence that it had sought to conciliate in good faith. It seems unlikely that Congress wrote Title VII to require the EEOC to defend its conciliation efforts in court but made its ability to do so dependent on the permission of the employer being sued. The court also concluded that there would be no meaningful standard of review. For instance, just how hard should the agency pursue an agreement?

A Supreme Court ruling for the employer could give employers a significant tool to stymie legitimate lawsuits against unlawful employment discrimination. As the Seventh Circuit wrote:

Simply put, the conciliation defense tempts employers to turn what was meant to be an informal negotiation into the subject of endless disputes over whether the EEOC did enough before going to court. Such disputes impose significant costs on both sides, as well as on the court, and to what end?

All the employer should legitimately hope to gain is some unspecified quantum of additional efforts at conciliation by the EEOC. The result of such a defense, as we have said in a closely related context, is to “protract and complicate Title VII litigation, and with little or no offsetting benefit.”


RELIGIOUS LIBERTY

Holt v. Hobbs: Right of a Muslim prisoner to grow a short beard

The Supreme Court is to address whether a state prison’s prohibiting a Muslim prisoner from growing a half-inch beard violates the federal Religious Land Use and Institutionalized Persons Act.

This case originated with a handwritten request to the Supreme Court from Gregory Holt (aka Abdul Maalik Muhammad), a Muslim prisoner in Arkansas, to hear his case. He states that his religious beliefs require him to have a beard, and he seeks to grow a half-inch beard. The state Department of Corrections prohibits beards generally, but allows quarter-inch beards grown for medical reasons. Muhammad sees his request as a compromise (since his religious beliefs really would have him grow it much longer) that has been accepted in prisons elsewhere.

Since he is in a state prison, Muhammad’s case is governed by a federal law called the Religious Land Use and Institutionalized Persons Act, or RLUIPA. Passed unanimously by Congress in 2000, RLUIPA requires prisons accepting federal funds to give greater religious liberty protections to inmates than is required by the First Amendment’s Free Exercise Clause. Similar to the better-known Religious Freedom Restoration Act (RFRA), which was at issue in Hobby Lobby, RLUIPA is triggered when the government imposes a “substantial burden on the religious exercise” of a person confined to an institution. When that happens, the action can be upheld only if the government can demonstrate that the burden: “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

The state argues that the no-beard policy furthers the compelling government interests in prison safety and security, and that the proposed half-inch accommodation would not be as effective as the no-beard rule in achieving those purposes. For instance, they provide the opinions of penal experts that prisoners could use the beards to hide contraband, and that escaped prisoners could too easily and quickly change their appearance simply by shaving. Muhammad (now represented by counsel) argues that the lower courts, which ruled against him, did not provide the strict scrutiny of the state’s arguments that is required by RLUIPA.

In Hobby Lobby, the Supreme Court significantly rewrote RFRA, watering down the “substantial burden” requirement and applying the religious liberty law to for-profit corporations. Neither factor is relevant to this case, meaning the Court could rule in favor of Muhammad without rewriting the law. But the Roberts Court is known for playing the “long game.” Even if the Court rules unanimously for Muhammad, they may not all agree on the reasoning: The conservatives could write an opinion designed to be cited in future RFRA litigation strengthening the hands of those on the right who would reshape RFRA from a shield against government oppression into a sword.


VOTING RIGHTS

Alabama Democratic Conference v. Alabama / Alabama Legislative Black Caucus v. Alabama: Racial gerrymandering

The Supreme Court is to address whether Alabama engaged in unconstitutional racial gerrymandering when it drew new state House and Senate district lines that channeled large numbers of African Americans into districts that were already majority-minority.

The GOP-controlled Alabama state legislature enacted a redistricting plan that transferred a significant portion of the black population that had previously been in majority-white districts into districts that were already majority-black. In so doing, the legislature was seeking to achieve certain percentages of black voters in the majority-black districts. At issue is whether legislators engaged in an unconstitutional effort to separate voters by race, or whether they followed traditional redistricting criteria in a way that was necessary to comply with the Voting Rights Act.

Due to population shifts, majority-black districts established after the 2000 Census lost population and had to be redrawn after the 2010 Census to bring in new people. In some cases, the population loss was disproportionately white, meaning that a significantly higher percentage of the remaining population was African American than before. In redrawing the lines while keeping the same number of majority-black districts, the legislature made two decisions that led to what some call “bleaching” – drawing lines so that large numbers of African Americans in majority-white districts would be redistricted into supermajority-black districts, and diminishing African Americans’ political influence in much of the state.

First, they chose to reduce the permissible population difference between districts from 10% (the 2000 standard) to 2%. To achieve district populations that close to each other, many more people would have to be drawn into the modified black-majority districts than would otherwise have been necessary. That huge numbers of those people would be blacks removed from majority-white districts was determined by the second decision: Ostensibly to comply with the requirement under Section 5 of the Voting Rights Act (this was before Shelby County) that new lines not lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise, the African American percentages in the redrawn majority-minority districts should be at least whatever they had become in 2010.

This reapportionment was upheld by a divided three-judge federal district court. The majority concluded that race was not the predominant factor in drawing the redistricting boundaries, so that they need not be analyzed under strict scrutiny as in the 1993 Shaw v. Reno case. The majority also concluded that even if strict scrutiny applied, the legislative boundaries were narrowly tailored to achieve the compelling purpose of compliance with the preclearance provisions of Section 5 of the Voting Rights Act, which applied at the time. The plaintiffs in this case – the Alabama Legislative Black Caucus and state Democrats – challenge those conclusions, arguing that legislators had misinterpreted Section 5, that race was impermissibly the overriding criterion used by legislators in drawing lines, and that the redistricting plan violated the Fourteenth Amendment.


FREE SPEECH AND SIGN REGULATIONS

Reed v. Town of Gilbert, Arizona: Municipal sign regulations

The Supreme Court will hear a church’s Free Speech challenge to city rules regulating the size and placement of various types of signs, which affect the signs it puts up to direct people to its church services.

This case was brought by a small church (25-30 adult members) in Arizona that places signs up to invite people to its weekly services and inform them where they are being held. Good News Church and its pastor Clyde Reed are urging the Court to strike down the town of Gilbert’s sign ordinance, which treats some signs (such as directional signs for events, like a fair or, in this case, a church service) differently from others (like political, real estate, or ideological signs). The different types of signs have different rules on how large they can be, and where and when they can be posted. Good News Church argues the law is an unconstitutional content-based infringement of its First Amendment rights. The lower court had upheld it as content-neutral.

Gilbert regulations generally require a permit before posting a sign, with a number of exceptions that can be posted without a permit. These exceptions (each with specific size, number, and placement rules) include construction signs, open house signs, parking signs, building identification signs, garage sale signs, street address signs, and restaurant menu signs. The church devotes much of its focus to three of the exceptions:

  • Temporary directional signs relating to a qualifying event (like the church’s weekly church service)
    • Size: up to 6 square feet (and up to 6 feet in height)
    • Time: 12 hours before, during, and 1 hour after an event
    • Number: maximum of 4 on a single property
  • Political signs
    • Size: up to 32 square feet
    • Time: any time before election, until 10 days after
    • Number: unlimited
  • Ideological signs
    • Size: up to 20 square feet
    • Time: any time
    • Number: unlimited

The church has signs in the first category to tell people about their weekly church services in the space they rent. The maximum size is smaller than political and ideological signs, fewer can be posted, and they cannot stay up nearly as long. Represented by the far-right Alliance Defending Freedom, Good News Church argues that the city is violating its First Amendment rights by applying different rules to different types of noncommercial signs based on their content. According to the church, any classification based on what a sign says is content-based and therefore subject to the highest level of scrutiny. And if the law’s purpose is, say, to promote traffic safety or aesthetics, then what difference should it make if the sign is for a church service, political candidate, or particular ideology?

A divided panel of the Ninth Amendment disagreed, ruling against the church. It said the distinctions among different types of signs are content-neutral (and thus subject to a somewhat lower level of scrutiny) because Gilbert’s interests in regulating temporary signs are unrelated to the specific content or message of the sign. Each exemption is based on objective criteria related not to the sign’s message, but to the reason for the exemption (such as need for communication about elections, or the need to let event sponsors inform people how to get to the event).


HOLDING FRAUDULENT CORPORATIONS ACCOUNTABLE

Public Employees’ Retirement System of Mississippi v. IndyMac MBS: Timing of lawsuits

The Court is to decide whether the clock stops on a deadline to sue for securities fraud when someone files a class action suit.

This case relates to a key 1974 precedent called American Pipe & Construction Co. v. Utah, where the Supreme Court ruled that the filing of a class action lawsuit stops the clock (“tolls” in legal parlance) on the statute of limitations on filing federal antitrust claims for all potential members of the class, including those who are not actively involved with or even aware of the class action lawsuit. So if a court then doesn’t certify the class for some reason or dismisses its claims, but makes that decision after the statute of limitations has passed, those who would have been included in the class have not lost their opportunity to have their day in court just because they hadn’t made an individual filing in the case.

The current case relates to the financial meltdown of the 2000s and involves federal laws in the Securities Act of 1933 prohibiting sellers of securities from misleading investors. The law has two key time limits: (1) You generally have one year to file a lawsuit, and that can be a year after the untrue or misleading statement is made or discovered. (2) But there is an additional limit, one that restricts just how long after the fact you have to discover the wrongdoing: “In no event shall any such action be brought … more than three years after the security was bona fide offered to the public [or, depending on which section of the law is involved] more than three years after the sale.” The Second Circuit concluded that the American Pipe rule did not apply to this statute.

One of the great benefits of class action litigation is that it protects the rights of people who cannot afford to themselves engage in litigation and may not even realize they have been wronged. It also vastly enhances our society’s ability to hold large corporations responsible when they violate people’s rights. The rule from American Pipe has served that purpose well. But in other contexts, the Roberts Court has significantly undercut the ability of Americans to utilize class actions to protect their rights. If the Court rules that American Pipe doesn’t apply in the securities fraud context, it will be important to see if its reasoning also undercuts American Pipe as a precedent in other contexts.

Omnicare v. Laborers District Council: Holding companies accountable for false statements to investors

The Court is to address what investors need to prove to hold companies accountable for material misstatements in investment material.

When responding to a public offering of company shares, investors may rely on a company’s registration statement with the Securities and Exchange Commission. Under Section 11 of the Securities Act of 1933, investors can sue if that statement “contained an untrue statement of a material fact or omitted to state a material fact [that was] necessary to make the statements therein not misleading.” This case asks what investors need to prove if the purportedly “untrue statement” was the company’s opinion that it wasn’t breaking the law.

Omnicare is the nation’s largest provider of pharmaceutical care for the elderly and other residents of long-term care facilities. In Omnicare’s registration statement, it said that “we believe” that its financial relationships with pharmaceutical manufacturers were legal. The investors here claim that some of those deals constituted unlawful kickbacks. The question is whether that allegation is enough to trigger Section 11.

According to Omnicare, for the investors to have a claim under Section 11, they have to allege that Omnicare didn’t believe the statement when it was made. Otherwise, companies could be held liable for statements of opinion that turn out later not to be true. Two circuit courts have taken that view.

But in this case, the Sixth Circuit took a different approach, one that makes it easier for investors to file a Section 11 claim. That court reasoned that Section 11 is a “strict liability” statute where the state of mind of company officials isn’t relevant, so it’s sufficient to allege that the opinion was false, regardless of whether the company knew at the time it was false. That’s the ruling the investors in this case are asking the Supreme Court to uphold.

In an amicus brief, the Obama Administration takes a middle ground, in which the company isn’t held liable only because it expressed an opinion that turned out not to be true. The Administration argues that a statement of opinion is actionable under Section 11 if: (1) the company didn’t believe it at the time (which both parties in this case agree on), or (2) there was no reasonable basis for the opinion at the time, even if it was sincerely held (which Omnicare disagrees with).

Any ruling by the Roberts Court should keep in mind that Congress enacted Section 11 to encourage maximum disclosure by companies making a public offering. After all, people associated with the company know far more about the business than potential investors could ever know, and Section 11 was intended to dissuade corporations from tricking investors.


CONCLUSION

Just as the Lochner case defined the Supreme Court a century ago as it turned conservative economic policies into constitutional dogma, America finds itself living through the Citizens United era, where the Court again routinely rules in favor of corporate and other powerful interests. By the end of June, we will know if the current term will have been as damaging to Americans’ fundamental rights as recent terms have been.

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