Obamacare

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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D.C. Circuit Old Guard Strikes Down Key Obamacare Subsidies Provision

Today's ruling from two GOP-nominated DC Circuit judges exemplifies why the Senate GOP fought so hard to prevent President Obama from naming anyone to that court.
PFAW

“Rebranded” GOP Votes for 50th Time to Undermine Obamacare

Today House Republicans led by Rep. Lynn Jenkins (R-KS) voted to delay the Affordable Care Act’s individual mandate. In case you haven’t been keeping track, this is the House GOP’s 50th vote to dismantle Obamacare.

In a speech last week at a DNC event, President Obama joked,

“You know what they say: 50th time is the charm. Maybe when you hit your 50th repeal vote, you will win a prize. Maybe if you buy 50 repeal votes, you get one free.” 

On Monday, in the wake of Governor Jan Brewer’s decision to veto her state’s anti-gay “freedom to discriminate” bill, People For the American Way president Michael Keegan wrote in a Huffington Post op-ed that we are continually asked to believe the “new, no-nonsense Republican Party” has finally taken to heart the “dangers of embracing extremism.” However, he writes:

“…there seems to be a Grand Canyon-like gap between what everyone knows the Republican Party should do and what they actually do. Time after time, we see that they just can't help themselves. We all know the embarrassing, crazy uncle who shows up at the family reunion. It seems like all of those crazy uncles have now banded together to control the Republican Party.”

And with their 50th vote to undermine Obamacare, it seems pretty clear that the Republican Party isn’t going to be able to rein in those crazy uncles anytime soon.

 

PFAW

Dobson Vows To Shut Down Rather Than Comply With Obamacare's Contraception Mandate

Last week, the Alliance Defending Freedom filed a federal lawsuit on behalf of James Dobson against Obamacare and its contraception mandate .... or, as they put it, against "Obamacare’s abortion pill mandate."

African American Ministers Leadership Council Statement on First Day of Affordable Care Act Enrollment

On the first day of open enrollment for the Affordable Care Act, People For the American Way Foundation’s African American Ministers Leadership Council (AAMLC) released the following statement:

The Affordable Care Act (ACA) will make access to health care a reality for many of our country’s most vulnerable women, men, and children. As African American faith leaders, we applaud the expansion of health care accessibility and believe that every person is entitled to compassionate, affordable, and culturally competent health care.

6.8 million African Americans who were uninsured yesterday have new opportunities for coverage today. These opportunities will make a real impact in the lives of real women, children and men.

This week, our clergy began a series of “I Care” Sundays that will focus on comfort and confidence in enrollment through March 31, 2014. Our ministerial alliance across the country will continue its outreach – to be spearheaded primarily by women faith leaders – in rural and urban churches to support health care from the pulpit to the pews. Through participating in the ACA, we are advocating a healthy future with human dignity for all. 

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

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To Understand GOP Government Shutdown Threats, Follow the Money

If you’re curious why many House Republicans are on board with an unhinged plan to threaten a government shutdown or default over demands to “defund” Obamacare, you should follow the money.  That’s what the New York Times editorial board argued in a compelling op-ed Tuesday. 

Far-right groups such as the Club for Growth are striking out at Republicans who refuse to take this reckless stance, wielding their considerable funds to “inflict political pain” on those who do not share their extremist position. And they are titillating their Tea Party supporters with political fantasies in order to get them to send in even more money, so they can ramp up their attack on Republicans who don’t toe the line. In “The Money Behind the Shutdown Crisis,” the editorial board wrote:

These groups, all financed with secret and unlimited money, feed on chaos and would like nothing better than to claim credit for pushing Washington into another crisis. Winning an ideological victory is far more important to them than the severe economic effects of a shutdown or, worse, a default, which could shatter the credit markets.

[…] Brian Walsh, a longtime Republican operative, recently noted in U.S. News and World Report that the right is now spending more money attacking Republicans than the Democrats are. “Money begets TV ads, which begets even more money for these groups’ personal coffers,” he wrote. “Pointing fingers and attacking Republicans is apparently a very profitable fund-raising business.”

And as more money pours into these shadowy groups, their influence – and thus their potential for inflicting further damage on our democracy – grows.  With fewer effective campaign finance regulations left standing in the post-Citizens United landscape, there is little that can stop these groups from using their money to bully elected officials.

But the functioning of our government is not a game.  And though for these fringe groups making an ideological point may seem more important than keeping our government from shutting down or defaulting, Americans are tired of having our basic economic security called into question over political posturing.

As the Times editorial board put it:

It may be good for their bank accounts, but the combination of unlimited money and rigid ideology is proving toxic for the most basic functioning of government.

PFAW

Pratt and Solomon: Obamacare Will Force Gun Owners to Undergo Electro-Shock Therapy

On a recent episode of the Talk to Solomon Show, Gun Owners of America executive director and actual influential person Larry Pratt played a sort of conspiracy-theory Mad Libs with host Stan Solomon, which resulted in the conclusion that Obamacare will force gun owners to undergo electro-shock therapy against their wills.

Solomon started off the conversation by reading from a Fort Myers, Florida News-Press story about a surge of people with severe depression or bipolar disorder seeking out electro-shock therapy treatment from a local hospital. He took this and ran with it, predicting that the government will soon force gun owners who resist home invasion to undergo the treatment.

Pratt agreed, saying, “I think part of that is what we’re seeing in Obamacare. This is going to be what you’re talking about several times over.”

Crouse: Obamacare Will 'Destroy Marriage'

In her latest column for the American Thinker, Concerned Women for America’s Janice Shaw Crouse repeats the claim of "newly conservative lesbian" blogger Cynthia Yockley that the Affordable Care Act will “destroy marriage for the middle class the same way that the Great Society welfare state destroyed the black family.”

Crouse bases this accusation on a bogus GOP talking point about the health care law’s supposed “marriage penalty” (if you care to read a full debunking, Igor Volsky has one here). This is all, Crouse alleges, a nefarious plot for “promoting single motherhood and discouraging marriage” in order to increase the number of single women, who tend to vote overwhelmingly for Democrats.

But it’s not only the health care law: Crouse repeats her frequent allegations that anti-poverty programs such as food stamps and the Earned Income Tax Credit are also deliberate attempts to “encourage individuals to reject marriage.”

Worse, we are discovering that ObamaCare really will "destroy marriage for the middle class the same way that the Great Society welfare state destroyed the black family -- with financial incentives for staying single." ObamaCare's marriage penalty could possibly cost couples over $10,000 a year. This intentional disparity means that U.S. government policy will encourage singleness and create increased disincentives for marriage. Single individuals will have an advantage with the earned income tax credit as well as welfare benefits, including food stamps. This comes as no surprise, of course, because "making the subsidies neutral towards marriage would lead to a married couple with only one bread-winner getting a more generous subsidy than a single parent at the same income-level."

With ObamaCare ramping up subsidies promoting single motherhood and discouraging marriage, an increase in poverty is inevitable -- along with dramatic increases in entitlements and dramatic tax hikes to pay for the increased entitlements. These increases are just one more of the numerous financial incentives in current government policy that increasingly encourage individuals to reject marriage -- the Earned Income Tax Credit (EITC), housing subsidies, food stamps, child support payments, and the welfare dependency programs that created and sustained the inner city matriarchal culture. These perks are costing American taxpayers trillions of dollars a year. Current welfare programs total close to $1 trillion a year (twice as much as national defense and nearly the size of the federal deficit); ObamaCare is projected to add another $2.5 trillion after all its provisions take effect. There's no end in sight to the increasing costs of these entitlements.

Politically, the "marriage penalty" is also a Democratic vote-getting initiative -- 70 percent of unmarried women voted for President Obama in the 2008 election. Greenberg Quinlan Rosner, a liberal firm that consults for clients such as Bill Clinton and John Kerry, said: "Unmarried women represent one of the most reliable Democratic cohorts in the electorate ... leading the charge for fundamental change in health care."

Ted Cruz, Rand Paul Rally Right-Wing Pastors in Iowa

As we noted earlier this week, Sens. Ted Cruz and Rand Paul were the main draws at “Rediscovering God in America,” an event for conservative pastors in Iowa that was organized by Christian-nation advocate David Lane under the auspices of the Iowa Renewal Project.  According to a report in the Des Moines Register, Cruz knew his audience:

In a fiery, Bible-quoting first speech during his first time in Iowa, Republican Ted Cruz called on evangelical conservatives to demand their GOP elected officials actually stand for the conservative principles they pretend to believe in.

“Belief, saying I believe in something, is not sitting there quietly doing the golf clap,” Cruz told hundreds of Iowa Christian conservative ministers this morning at a private conclave in Des Moines….

Cruz lectured for 30 minutes, his voice at times rising to a shout. He answered questions for another 20 minutes, then stood at the center of a circle as pastors laid their hands on him and the whole audience – a predominantly white group with about 20 black pastors – bowed heads to pray for him.

As we have reported, event organizer David Lane has declared war on Republicans who are insufficiently conservative or aggressive. That’s something he has in common with Cruz, who complained during his presentation that Republicans in Congress would not have the guts to defund Obamacare in upcoming appropriations battles. And he portrayed himself as courageous warrior for right-wing causes: "The biggest applause and loudest whistles came when Cruz talked about abolishing the IRS. He said that’s “viewed as scary radical talk” in Washington, and that career politicians don’t want it to happen."

Cruz also touched on another of David Lane’s favorite themes: the responsibility of pastors to move America by being more aggressively political.

He told the pastors they have a special charge to urge their flocks to become more active in politics.

“It is so easy to hide from the public square. It is so easy to say the challenges of the country are someone else’s problem. But the pastors, and your husbands and wives who are here, ya’ll are not content to do that and I’m so grateful for that.”

The Register says that Cruz’s father, Rafael Cruz, who is making the Religious Right circuit on his own these days, was also in attendance.

The Register also reports on Rand Paul's speech:

Republican Rand Paul thinks the country needs to find its way back to Christian values and the traditions of the founders, he said in Iowa today.

“What America needs is not just another politician or more promises,” he said. “What America needs is a revival.”

According to the Register, Paul couched his less-interventionist foreign policy in terms of denying U.S. support for "haters of Christianity."

To an audience of about 650, Paul said some Republicans have the mistaken belief that the way for the nation to project strength is through war.

“Jesus reminds us what our goal should be when he proclaims: ‘Blessed are the peacemakers, for they shall be called the children of God,’” Paul said. “This does not mean we never go to war. But it means we should do so reluctantly, and seek an end expeditiously.”

Paul said the U.S. Senate is now attempting to arm Islamic rebels in Syria, many of whom are Al Quaeda.

“There is an irony that is impossible to escape: Our taxpayer dollars will fund Islamic rebels who may well be killing Christians,” he said. “In country after country, mobs burn the American flag and chant ‘death to America.’ Congress responds by sending more of your money to these haters of Christianity.”

And, in the line that drew a standing ovation and the most passionate applause of his speech, he said: “I say not one penny more to any nation that is burning our flag.”

 

Tony Perkins: Obama 'Scandals' a Gift from God

A new fundraising pitch from Family Research Council President Tony Perkins comes in a black envelope with a photo of a door cracking to allow light into the darkness and the message, “URGENT: God has opened a door to STOP America’s decline.” The letter inside, dated July 1, portrays the “scandals” surrounding the Obama administration – including the discredited IRS and Benghazi “scandals” hyped by right-wing media and GOP members of Congress – as an act of God:

The opportunity we have prayed for may be here . . . if we seize it.

As I witness the astounding scandals exploding within President Barack Obama’s administration, I believe Almighty God—who founded America and saved us through trials before—may be giving the American people an opportunity to stop today’s tyranny.

I believe He may be giving us an open door to turn back the plans of today’s arrogant big government: a secularist, anti-faith tyranny that is trying to snuff out religious freedom and biblical influence in the United States.

The letter calls for abolishing the IRS and opposing the enforcement of “ObamaCare,” and urges donations to help FRC:

Work with Congress and government officials to stop “hidden scandals” such as the Obama administration’s attempt to drive Christian values and religious freedom out of the military . . . impose the principles of the Employment non-Discrimination Act (ENDA) which attack Christians in the workplace who refuse to affirm immoral sexuality . . . and more.

Perkins’ letter hypes the now-disproven claims that the IRS was waging jihad against conservatives:

We now know that the IRS was selectively auditing—harassing a growing number of ministries, conservative groups, Tea Party groups, and others who opposed President Obama.

The IRS threatened to remove the tax-exempt status of these citizens! These attacks by the IRS threatened to financially cripple them, costing them untold sums of money just to defend themselves against the IRS agents. The common link: ministries and organizations targeted for audits had stood against President Obama’s secularist, antireligious freedom agenda.

Actually, what we know is quite the opposite. The IRS “scandal” has evaporated as more evidence has some to light. Even some Republican officials have admitted as much. According to the New York Times, “Senator Roy Blunt, Republican of Missouri, said that in retrospect, suggestions that Mr. Obama had orchestrated an I.R.S. attack on his political enemies were unwarranted.”

In addition, Perkins’ letter says a State Department “cover-up” in connection with the assassination of American officials in Benghazi, Libya “might have saved the election for President Obama. Yet it might render him paralyzed in his second term.”

Actually, that’s another “scandal” that has largely evaporated under revelations that much of it was based on a bogus story peddled by Karl Rove.

Perkins says that FRC intends to “turn the tide of the past five years.”

The scandals will help show Americans why the Bible is right when it cautions against big government. Because of sin, power corrupts, and concentrated power corrupts completely. Bit government will always see God as a rival and try to replace Him, attacking God’s people and Biblical values and principles.”

Actually, as journalist Jonathan Chait wrote in New York magazine in late June, “the entire scandal narrative was an illusion.” It lives on, of course, in the world of far-right activists and conspiracy theorists like Tony Perkins.

Teavangelicals Told to Be ‘Happy Warriors’ Against Liberals, Big Govt, GOP Nay-sayers

Here’s a question for Ralph Reed and the ‘Teavangelical’ wing of the conservative movement: how can you portray yourselves as serious about governing when the keynote speakers at last week’s “Road to Majority” conference were Donald Trump and Sarah Palin?

Palin’s conference-closing remarks on Saturday featured a breathtakingly offensive joke about the Syrian civil war, which has taken an estimated 100,000 lives. She said we should just “let Allah sort it out.” Palin also had choice words for the bipartisan immigration reform bill moving through the Senate, which she dismissed as “a pandering, rewarding-the-rule-breakers, still-no-border-security, special-interest-written amnesty bill.” She was one of many conference speakers rhetorically crapping on Marco Rubio and the bipartisan “Gang of 8” reform bill and burning the bridges that conservative Latinos are trying to build.

At Friday night’s “gala” Reed bestowed a lifetime achievement award on Pat Robertson, who is increasingly difficult to take seriously, and who devoted his remarks to trashing President Obama.  Trump, who also addressed the gala, spoke mostly about his own Trumpian greatness and how Mitt Romney might have been president if he had the guts to run Trump’s anti-Obama “you’re fired” ad.  Trump shared plenty of pablum and piercing political insights, such as the Republicans needing to be “really smart” in choosing a “great candidate” in 2016. Trump also criticized the immigration reform bill as a “death wish” for the Republican Party, saying “every one of those people, and the tens of millions of people they will bring in with them, will be absolutely voting Democratic.”

There’s no question Ralph Reed still has pull. His conference opened with a luncheon featuring four Tea Party senators and he got a handful of Republican House members to speak along with former and future presidential hopefuls like Mike Huckabee, Herman Cain, Rick Santorum, and Ted Cruz.  Rick Perry, who was introduced as a “Renaissance man,” bragged about the law he recently signed to protect the ostensibly threatened right of public school students to wish each other “Merry Christmas” Perry said, ““I hope my state is a glowing example of men and women who believe that those traditional values are how you make a stronger society.” Stronger society? Not so much.

In addition to the divide on immigration, relentless attacks on President Obama (Dick Morris said of the president, “he doesn’t care about national security”), and the unsurprising rhetoric on abortion, marriage, and supposed threats to religious liberty, there were some other major themes:

Government Bad

The conference was infused with the Tea Party’s anti-federal-government themes. Jonah Goldberg of the National Review reminded people of a video shown at the 2012 Democratic National Convention, which he recalled saying the government is the one thing we all belong to.  “Now, as sort of a Tea Party-ish kind of guy, that makes me want to flip the safety on my rifle.”

Speakers urged activists to take advantage of the recent scandals surrounding the IRS, the Justice Department, and the National Security Agency. Santorum urged activists to “think big” and “seize the moment” provided by the IRS scandal. Sen. Ron Johnson said he would like Americans to apply their disgust about the scandals to the federal government in general. Rather than trying to restore faith in government, Johnson said, activists should be fostering distrust of the government.

Grover Norquist is known for his quip that he wants to shrink the government until it is small enough to drown in the bathtub.  At Road to Majority he spelled out his plan to complete the strategy he embarked on with the Bush tax cuts and the no-tax-increase pledge he demands Republican candidates sign. He noted that “thanks to the marvels of modern redistricting,” Republicans are likely to have a Republican House until 2022, which means they have several chances to get a Senate majority and a Republican in the White House before then. Whenever that happens, he says, Republicans can put the Ryan budget into law and dramatically curtail government spending. He calls it “completely doable.”

Meanwhile, he said, in the 25 states where Republicans control the legislative and executive branches, activists should push for the passage of more anti-union legislation, and for laws that encourage people to obtain concealed carry permits, home school their children, and participate in stock ownership, three things that he said make people more Republican. He called this changing the demographics by changing the rules.

Obamacare: Will it Destroy America or Obama?

House Republicans have made repealing the Affordable Care Act – “Obamacare” – an obsession. Rick Santorum said opposition to the law should have been the centerpiece of the 2012 campaign. And many speakers repeated the demand that the health care reform law be repealed in its entirety.  Stephen Moore, founder of the Club for Growth and a Wall Street Journal editorial board member, said repealing Obamacare is the single most important thing that has to happen in Washington over the next two years. But a number of speakers had a slightly different take, suggesting that the implementation of the complex law would be its undoing, and that public outrage at rising insurance rates would bring down the Obama administration. Dick Morris predicted Obama would be “destroyed” by the law’s implementation.

GOP: Friend or Foe?

One running theme of the conference was conservative activists’ distrust for national Republican leaders, particularly around opposition to abortion and LGBT equality. Several speakers made reference to the notorious RNC “autopsy” on the 2012 election and the perception that some party leaders want social conservatives to tone it down. Reed himself complained that while self-identified evangelicals represented 45 percent of the Republican ticket’s vote, some party leaders were saying they are the problem and should “ride in the back of the bus.” He vowed that on issue of abortion and man-woman marriage, social conservatives would not be silent, “not now, not ever.”

It’s not just Ted Cruz who mocks his fellow Republicans. Gary Bauer complained that the last two Republican nominees had a hard time talking about sanctity of life issues, and he said party officials in Washington spend too much time taking the advice of “cowardly pollsters and political consultants.”  Mike Huckabee complained that “Republicans have been, if not equal, sometimes more guilty than Democrats in thinking the brilliant thing to do would be to centralize more power in the hands of the central government.” He said he’s “sick of hearing” that people think the GOP needs to move away from a conservative message.

There was enough grumbling that when it was RNC Chairman Reince Priebus’s turn to speak on Saturday, the Wisconsin Faith & Freedom official who introduced him felt a need to vouch for Priebus’s faith and commitment to conservative causes. He said angrily that it is “an absolute lie” that Priebus is not a social conservative and insisted that there is no division in the party.

Priebus started his remarks by establishing his religious credentials: “I’m a Christian. I’m a believer. God lives in my heart, and I’m for changing minds, not changing values.” He added, “I’m so grateful that we’ve got a party that prays, that we’ve got a party that puts God first, and I’m proud to be part of that.” He said he “gets it” that conservative Christians are a “blessing” to the party. He said the GOP needs to have a permanent ground game in place all across the country. 

Priebus defended his plan to shorten the presidential primary season and move the party convention from August to June from critics who call it an insider move against grassroots conservatives. It isn’t an establishment takeover, he insisted, but a way to prevent a replay of the 2012, when Romney went into the summer months broke after a long primary season but not yet able to tap general election funding.

Still, not all the conservative are convinced that national Republicans are with them.  Palin portrayed Republicans in Washington as being overly fond of government spending: “It doesn’t matter if it’s a Republican or a Democrat sitting atop a bloated boot on your neck, out of control government, everyone gets infected, no party is immune. That’s why, I tell ya, I’m listening to those independents, to those libertarians who are saying, you know, it is both sides of the aisle, the leadership, the good old boys….”

Phyllis Schlafly talked about having waged internal battles to make the GOP a solidly anti-abortion Party and encouraged activists not to be seduced by talk of a conservative third party but to work within the Republican Party to make sure the right people on the ballot. Norquist insisted that activists had helped brand the GOP as the party that will not raise your taxes, and he said Republican elected officials who vote for tax increases damage the brand for everyone else. They are, he said, “rat heads in coca-cola.”

Message Envy

It might surprise many progressives, who have spent years bemoaning the effectiveness of Republicans’ emotion-laden rhetoric, that speaker after speaker complained that Democrats are so much better than Republicans at messaging.  Of course complaining about messaging is easier than admitting that there may be something about your policies that voters don’t like.

At a panel on messaging strategies, author Diane Medved said that when defending traditional marriage, she would love to say “what is it about ‘abomination’ that you don’t understand?” But she knows that won’t reach people who don’t already agree with her. She argued that conservatives should marshal the “science” that supports their positions.  She also tried out a new messaging strategy, saying that opposition to marriage equality is a feminist issue because it is empowering to women to affirm that they are different than men. “Women deserve to have credit for being who they are as a separate gender and they are not interchangeable with men.”

Ryan Anderson, co-author of a book on marriage with Robert George, the intellectual godfather of the anti-marriage-equality movement, took issue with the name of the panel, which was “Don’t Preach to the Choir.” Anderson said the choir needs to be preached to, because too many Christians are giving up on marriage. There is no such thing as parenting, he insisted, there is mothering and fathering. Anderson said that anti-marriage equality forces have only been fighting for five years, while proponents have been fighting for 20 to 30 years. “It’s not that our argument for marriage has been heard and been rejected,” he said. “It’s that it hasn’t been heard at all.”  Anderson promoted the widely discredited Regnerus study on family structures as evidence that science is on his side.

Eric Teetsel, executive director of the Manhattan Declaration, encouraged activists to be careful with their rhetoric. “I don’t believe that there are very many, if any, people in this movement, certainly not in public life, who have any ill will toward the same-sex community, at all. But sometimes we say things that make it sound like we do.” If Teetsel really believes that, he needs to spend some more time actually listening to conservative religious leaders, pundits and politicians who regularly charge that gay-rights advocates are Satan-inspired sexual predators who are out to destroy faith and freedom if not western civilization itself.

Don’t Worry, Be Happy or Arguing as a Lover with Stupid Liberals

Anyone who pays attention to religious right groups has been seeing the word “winsome” a lot. Conservative evangelical leaders are well aware of polling data that shows young Christians are turned off by the anti-gay bigotry they see in the church.  So there’s a push on for everyone to make conservative arguments in a “winsome” way, to be “happy warriors” like Ronald Reagan, to be cheerful when arguing with liberals. Being cheerful was a big theme at Road to Majority. Said Rick Perry, “when we fight for our county, we need to do it with joy.” 

The Manhattan Declaration's Teetsel took this theme to new heights in the messaging panel in which he called for “arguing as a lover” when “trying to woo people over to our side”: be respectful, self-effacing, funny, give people an opportunity to save face.  But he doesn’t seem to think much of his audience, saying America is no longer a society of ideas, and that in our celebrity-crazed culture it doesn’t make sense to appeal to 18th Century sources of authority like the Federalist Papers, which “are not considered authorities in my generation. People do not care what these men in wigs thought 300 years ago.”

“We serve a God who condescended to become a man in order to share his gospel. And I think that’s an example that we can learn from. Romans 12:16 advises us, do not be proud, but be willing to associate with people of low position. So we have to bite the bullet.  We have to recognize some of these facts and condescend to watching Glee from time to time so that we can talk to people about it.”

 

Right-Wing 'News' Outlet: 'Obamacare Just Killed its Millionth Person'

An email sent from Charisma media, a Pentecostal media company, brings the “news” that Obamacare has killed its millionth person. Amazingly, this milestone was reached even before health care reform has been fully implemented. The claim is not documented or explained in any way. It seems to be mostly an attention-grabbing way to promote some right-wing hucksterism.  Here’s how the letter starts:

Obamacare Just Killed its Millionth Person...

Dear Concerned Citizen, 

The eleventh hour is upon us.

In the coming weeks, the full impact of Obamacare will take effect. 

I've seen what's coming and it's scary. It's a lethal dose of socialism being injected directly into the heart of the American health insurance market.

Heck, it's already wreaking havoc. By our estimates, Obamacare has already killed a million people by further straining an already weak healthcare system. 

The letter pitches an anti-Obamacare petition and promotes “Capitol Hill Daily,” an electronic publication launched this year. Capitol Hill Daily’s “Chief Political Analyst” is right-wing activist Floyd Brown, a co-founder of Citizens United and infamous as the political operative behind the Willie Horton ad deployed against Michael Dukakis in the 1988 presidential race.

Capitol Hill Daily produces reports, such as From Policy to Profit: How the World's Biggest Profit Opportunity is Hiding Inside of Capitol Hill , that purport to teach people how to make “enormous sums of money”  based on the kind of “political intelligence” available to members of Congress and hill staffers.  

'If This Isn’t Nazism, Communism, Marxism and All the "Ism’s," I Don’t Know What Is'

Conservative columnist Sher Zieve posts an interview today with Christina Michas, head of the Palm Springs chapter of Phyllis Schlafly’s Eagle Forum.

Michas, it turns out, is an expert in the sinister connection between Common Core education standards, Agenda 21 and Obamacare, the proponents of which, she has discovered, have the “ultimate goal” of setting up “internment or re-education camps for those that will not comply with their sick agenda.”

In particular, Michas tells Sher, “the comparison of Nazism and Common Core are uncanny.” In fact, she says, “If this isn’t Nazism, Communism, Marxism and all the ‘ism’s,’ I don’t know what is.”

“I know this sounds insane,” Michas adds,  “but sadly, it is a reality we are facing today.”

It’s difficult to summarize her arguments, but here are some excerpts:

Sher: Christina, thanks so much for being here with me, today. You are doing an extraordinary job of bringing the truth about what is happening in the government public school system in the USA…and it isn’t pretty.

During his brutal reign in Russia, in which he established the Soviet Union or USSR, created the Secret Police, established Siberian prison camps, killed thousands of peasants when they did not work as hard as the ruling Communist elites demanded or if they questioned anything these same Communists did, Vladimir Lenin also, said: “Give me four years to teach the children and the seed I have sown will never be uprooted.” He was referring to the Luciferian Communist Party’s child education--aka indoctrination--system.

“Common Core” appears to have all of the earmarks of the old USSR’s programming system for children with several new innovative and chilling twists. It is also firmly tied to Agenda 21--the land-grabbing and human suppression and depopulation program.

Christina: The comparison of Nazism and Common Core (CC) are uncanny. One such comparison is that Nazism had Leaders and Master Teachers in the National Socialists Teachers League that visited schools and kept data files on Teachers. The Obama Administration funded 10,000 Master Teachers (MT’S) to train Teachers on CC and the MT’s will keep data files on students and Teachers. Students were taught to spy on parents and teachers. CC will have students as young as 5 participating in the evaluation of Teachers.

In Nazism, the curriculum was rewritten to provide a Nazi (government) approved curriculum. Common Core curriculum is being rewritten to provide a global approved curriculum. Nazism kept huge data files on students and teachers and Common Core will data mine the students with over 400 different data points on each child, their family and teachers from pre-kindergarten to workforce…

And one final comparison is Nazism had strong Teachers’ Unions (NSTL). We have but to look at how powerful the Teacher’s unions are in our country and only growing stronger in power and influence under this current Obama Administration’s unholy alliance with them at America’s expense and the expense of the education of our children.. The quality of the educational standards of our children has suffered at the hands of these Teachers’ Unions. Common Core is no different. Our children will suffer at the hand of a government controlled education system. They will no longer be able to have dreams and goals but only those that the government wishes them to have (UNESCO –A21). If this isn’t Nazism, Communism, Marxism and all the “ism’s”, I don’t know what is.

The worst part is they are lying to parents and teachers about what Common Core really is and the effects it will have. Teachers don’t even realize that their jobs are in jeopardy for, if they do not conform, they will be removed. But, then again, were not the people of Russia, Germany etc. all deceived until it was too late??

From reading these quotes and excerpts, we can see how Common Core ties into Agenda 21’s global goals for the New World Order. Control!! Control!!

The ultimate goal of UNESCO, via the nationalization of our education system is to create “ good global, sustainable citizens who will be “managed” by a Global Government. The ultimate goal is to have a “managed citizenry”, a managed economy, and a managed environment once again returning to Mother Earth worship.

This is where eugenics and William (Bill) Ayers, Obamacare, the Nationalization of our Economy, Energy, Health and Education systems comes into play. Ayers is a major driver behind Common Core and sadly is a very radical Professor today that has had much influence on students thinking … He and other key players including the Clinton’s, Bushes’, Gore, Gates, Soros, Rockefeller, Warren Buffet, Obama and his minions, etc. Understand that one cannot “manage” most of adult America today. The ultimate goal of these radicals from the UN, the US and other nations is to set up Internment or Re-education camps for those that will not comply with their sick agenda. You either are “retrained” or you will have to be eliminated.

The Healthcare Bill will take care of the “useless” senior population via “managed care”. The government will have free reign with the youth. You cannot change a nation unless you change how it thinks and operates…Hence, the lesson learned from Lenin, Stalin, Marx et al, “get the children and you change generations”…

I know this sounds insane, but sadly, it is a reality we are facing today. Don’t take my word for it, do your research.

 

FRC Discovers Elusive Obamacare-ACORN Connection

The Family Research Council has caught wind of a new theory percolating in the right-wing blogosphere and in certain circles on Capitol Hill: that the Department of Health and Human Services is using a new Obamacare rule to empower the long-defunct ACORN to commit voter intimidation and fraud.

The new rule in question is HHS’s solution to the problem of signing up 30 million uninsured Americans on the Affordable Care Act’s health insurance exchanges. Under the rule, HHS will recruit “navigators” to walk uninsured people through the process of finding an insurance policy on their state’s exchange. According to the Washington Post, “Groups such as unions, chambers of commerce, health clinics, immigrant-service organizations, and community- or consumer-focused nonprofits can use the grants to train and employ staff members or volunteers to provide in-person guidance — especially to hard-to-reach populations — and to provide space for them to work.”

Here’s where ACORN comes in: A draft questionnaire [pdf] for insurance applicants, in compliance with 1993’s “motor voter” law, gives applicants the option of registering to vote.

Enter Rep. Charles Boustany of Louisiana, chairman of the House Ways and Means subcommittee on Oversight, who last week attacked the plan to ask insurance applicants about voter registration, saying, “It raises questions as to why HHS is gathering voter information, how the agency intends to use such information and how the information could be used by the navigators.” His fears were then picked up by Breitbart.com, which announced this week, “HHS resurrects ‘ACORN’ through Obamacare.”

Yesterday, the Family Research Council picked up this story and ran with it in its daily email, warning that an “army of ACORN, Planned Parenthood, and union activists” will use their roles as insurance navigators to “influence people’s party affiliation.” The email adds: “With this administration, it isn't a question of whether they would abuse their power--but when!”

The rule, which is available for public comment for the next few weeks, also includes a "voter registration provision," leading many--including Rep. Charles Boustany (R-La.)--to question how this army of ACORN, Planned Parenthood, and union activists would twist their access to influence people's party affiliation. With this administration, it isn't a question of whether they would abuse their power--but when!

ACORN, of course, disbanded in 2010 after a right-wing smear campaign accused it of large-scale voter fraud – accusations that turned out to be completely false. But that hasn’t stopped 49 percent of Republican voters from believing that ACORN stole the 2012 election for President Obama – an illusion gleefully perpetuated by groups like the FRC.

The Challenge of “Both-And” Policymaking

People For the American Way Foundation’s Twelve Rules for Mixing Religion and Politics is grounded in our commitment to religious liberty and church-state separation, and in the recognition that fundamental constitutional values sometimes come into creative tension.  Where to draw the lines in any particular situation can be a challenge, and even people who generally agree on constitutional principles may disagree about how they should apply on a given policy question. Nothing demonstrates this complexity more than the Obama administration’s efforts to ensure that American women have access to contraception and reproductive health services while addressing objections that such requirements would violate the conscience of some religious employers.

Religious Right groups and their allies at the U.S. Conference of Catholic Bishops have for months been portraying the Obama administration’s proposed rules requiring insurance coverage of contraception as totalitarian threats to religious liberty, even after the administration adjusted its initial proposal to address those concerns.  Some Religious Right leaders are sticking with their ludicrous “tyranny” message even after the Obama administration today released a further revision that broadens the number of religious groups that will be exempt from new requirements while still guaranteeing women access to contraception.

In describing the policy proposal, HHS Deputy Director of Policy and Regulation Chiquita Brooks-LaSure told reporters, “No nonprofit religious institution will be forced to pay for or provide contraceptive coverage, and churches and houses of worship are specifically exempt.” Under the plan, women who work for such organizations would have access to no-cost contraception coverage through other channels.

Here’s where it gets interesting: The new proposal won praise both from Planned Parenthood and NARAL Pro-Choice Americaand from right-wing ideologue Bill Donohue of the Catholic League, who called it “a sign of goodwill by the Obama administration toward the Catholic community.”

In contrast, the proposal was slammed by the far-right Family Research Council and Concerned Women for America – and by Catholics for Choice, which said, “While protecting contraceptive access under the ACA is a win for women, the administration’s caving in to lobbying from conservative religious pressure groups is a loss for everyone.” Catholics for Choice warned that a broadened exemption for religious groups “gives religious extremists carte blanche to trump the rights of others” and that women working at Catholic organizations “are wondering whether they’ll be able to get the same coverage as millions of other women, or if their healthcare just isn’t as important to the president as their bosses’ beliefs about sex and reproduction.”

James Salt, executive director of Catholics United, portrayed the approach as a win-win. “As Catholics United said from the very beginning, reasonable people knew it was right to be patient and hopeful that all sides could come together to solve this complex issue. The White House deserves praise in alleviating the Church’s concerns.”

Leading advocates for women’s heath praised the new approach.  Cecile Richards of Planned Parenthood said the group would be taking a look at the details, but said “This policy makes it clear that your boss does not get to decide whether you can have birth control.” A statement from NARAL Pro-Choice America said the group“is optimistic that these new draft regulations will make near-universal contraceptive coverage a reality.”

Meanwhile, anti-choice advocates that have been pushing for rules that would exempt even individual business owners who have objections to providing contraceptive coverage for their employees complained that the new exemption would not extend to private businesses.

Concerned Women for America President Penny Nance said the new rules show Obama’s “intent to trample the religious liberties of Americans” and said, “When religious groups and individual Americans are forced to deny their deeply held religious convictions, it is not called “balance,” it’s called “tyranny.” The Family Research Council repeated Religious Right characterizations of the previous accommodation as an “accounting gimmick.”

People For the American Way believes that the government has a compelling interest in ensuring that women have access to family planning services. Indeed, Dr. Linda Rosentock, dean of the UCLA's school of public health and a member of the Institute of Medicine committee that was part of the review process on the HHS regulations, testified last year that the Centers for Disease Control has ranked family planning as one of the major public health achievements of the 20th Century.

People For the American Way is also deeply concerned about the efforts by  Religious Right groups and its conservative Catholic allies to re-define “religious liberty” in unprecedented ways that would allow groups to take taxpayer dollars without abiding by reasonable regulations such as anti-discrimination requirements – and to allow private employers and others to claim exemption from all kinds of laws based on “religious” or “moral grounds.”

In this case, we believe the Obama administration has acted in good faith to promote the nation’s public health interests while addressing concerns that those policies might burden religious liberty.  Our courts have long recognized that religious liberty, like the freedom of speech, is not absolute, and that policymakers must often balance competing interests. That is what the administration has done.

PFAW
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