Religious Liberty

Why The Right's Response To Marriage Equality Is Anything But Principled

This post by PFAW and PFAW Foundation Senior Legislative Counsel Paul Gordon was originally published in the Huffington Post. 

Ted Cruz, Bobby Jindal, and other conservative leaders have recently lashed out against the Supreme Court's decision on marriage equality by proclaiming that local clerks who don't personally agree with marriage equality should not be required to issue marriage licenses or perform weddings for same-sex couples - even though it's their job to provide that service to the public.

Their logic is fundamentally flawed. Civil marriage is a civil function, not a religious one. Government employees allowing someone to access their legal rights are not doing anything religious, nor are they condoning the actions being licensed any more than with any other type of license.

That's why when government employees in our country have had religious objections to divorce and remarriage, they have still had to do their jobs. And when government employees have had religious objections to interracial marriages, they have still had to do their jobs. So, too, have government officials with other religious objections to whether or how certain couples get married.

But when the particular religious belief in question is opposition to lesbians and gays, that's apparently a different matter altogether. Now, suddenly, we're told that government employees need to have their religious liberty "protected."

A principle of religious liberty that is invoked only in the context of one particular religious belief is no principle at all. It is a pretext.

The far-right movement that is coalescing around these "protections" allowing civil servants to impose their religious beliefs on others and deny them service does not have clean hands in this regard. While they proclaim loudly that they just want to "live and let live," the policies they have pursued vigorously for decades have aggressively sought to prevent LGBT people from having basic human rights. The Right's new clamor for "protections" is just another form of homophobia.

If the religious right simply wanted to "live and let live," they would not have spent these past decades seeking to impose their religious beliefs about homosexuality on others both through custom and through force of law. They would not have boycotted television networks for airing shows portraying LGBT people as ordinary people. Nor would they have screamed bloody murder when popular celebrities came out of the closet. They would not have fought to prevent us from raising children. They would not have battled to ensure that surviving members of couples be denied Social Security survivor benefits. They would not have opposed letting us serve our country in the intelligence services or in the military. They would not have put so much energy into convincing Americans that we are sexual predators going after their children. They would not have tried to bar us from teaching in public schools. They would not have threatened us with criminal prosecution just for our private, consensual sexual conduct.

Whether it's religious refusals specific to marriage, more general Religious Freedom Restoration Acts in a post-Hobby Lobby world, or Sen. Mike Lee's misleadingly named "First Amendment Defense Act," the Right is yet again attacking LGBT people. With a growing number of Americans - and now the Supreme Court - affirming that the right to marry is a right guaranteed to all regardless of sexual orientation, some on the Right have come to understand that their best tactic to fight marriage equality is to couch their homophobic goals with the language of "religious liberty" instead of explicitly speaking out against LGBT rights. But it's up to all of us to make sure that they do not succeed in these efforts to portray themselves as virtuous defenders of religious liberty, because in reality they're just waging another war against LGBT people.
 

PFAW

Michael Brown Thanks Justice Kennedy For Religious Persecution That Will 'Galvanize' Church

Anti-gay activist Michael Brown released a snarky thank-you note today to Justice Anthony Kennedy, author of the Supreme Court’s 5-4 decision upholding marriage equality nationwide.  According to Brown’s letter, the ruling will “galvanize” the anti-marriage-equality movement the way Roe v. Wade galvanized the anti-abortion movement.

In a moment of time, you have done more to energize our side than a string of political victories for us could ever have done.

You have so painted us into a corner and so overstepped the bounds of your office that you have singlehandedly strengthened our resolve to stand, even unifying groups and individuals that had not worked together before now.

For that, sir, I sincerely thank you.

I also want to thank you for confirming what we have been saying for many years now, namely, that gay activism is the principle threat to our freedoms of speech, religion, and conscience.

Brown says the marriage equality ruling has given justification to “a torrent of hatred” aimed at religious conservatives, and he cites a biblical injunction from Jesus to his followers to rejoice when they face persecution.

Thank you, Justice Kennedy, for bringing unprecedented religious persecution to the shores of our nation.  Despite the darkness and pain ahead, this will only cause the Church to wake up and grow stronger.

It is worth noting that Brown made similar remarks about a wake-up call for the Church, as well as a “fresh call to revolution”  among America’s pastors, two years ago after Supreme Court rulings that overturned key sections of the federal Defense of Marriage Act and opened the door for same-sex couples in California to get legally married.  In that broadcast, Brown told Christians not to get upset about “gloating” from gay-rights activists, but to pity them because God will “have the last word.”

 

Activists Join Rep. Eleanor Holmes Norton to Protest Bogus ‘Religious Liberty’ Objections to DC Anti-Discrimination Law

The right-wing tactic of pushing discriminatory policies under the guise of religious freedom is nothing new -- we’ve already seen it used to hurt LGBT people in North Carolina, Louisiana, and elsewhere across the country. But now Republican lawmakers are going a step further, by attacking anti-discrimination legislation meant to protect Americans who aren't even represented in Congress.

The legislation is Washington, DC’s Reproductive Health Non-Discrimination Act (RHNDA), which would protect workers from being fired or punished by their employers for things like using birth control, getting pregnant without being married, or having an abortion. DC’s City Council recently passed RHNDA, and now Congress is using its (fundamentally undemocratic) authority to reverse DC’s local laws to repeal it on the grounds that it violates the religious freedom of employers. Last week, the House Appropriations Committee approved a rider that would block DC from using local funds to enforce RHNDA.

Today, Congresswoman Eleanor Holmes Norton (D-DC) held a press conference in DC, where she denounced these congressional attacks and praised the DC employers who have vowed to embrace RHNDA’s protections anyway.

“Republicans do not understand how united this city is against discrimination, and they do not need to; they just need to let the District be the District... Our Republican opponents claim that the Reproductive Health Non-Discrimination Act will allow pro-choice employees of anti-choice organizations to espouse their own personal pro-choice beliefs.  That falsehood must be met with the truth that employees must carry out the mission of their employer.”

Nearly 33,000 people have already signed PFAW’s petition telling Congress not to meddle with DC’s Reproductive Health Non-Discrimination Act.

PFAW

Southern Baptist President Bravely Pledges Resistance Against Non-Existent Forced-Marriage Threat

Fox News pundit and war-on-Christians propagandist Todd Starnes is gushing over a speech by Ronnie Floyd, president of the Southern Baptist Convention. Floyd’s “fiery” and “powerful” and “provocative” comments were part of a diatribe against marriage equality delivered at an SBC gathering in Columbus, Ohio. Floyd called for defiance of a potential Supreme Court ruling on marriage equality with self-aggrandizing, chest-thumping remarks declaring his resistance to a non-existent threat:

“I declare to everyone today as a minister of the Gospel – I will not officiate over any same-sex unions or same-sex marriage ceremonies,” he said. “I completely refuse.”

Starnes praised Floyd for these “resolute” comments, which he says some will label hate speech. They’re more likely to be laughed off as ridiculous. No one in the gay-rights movement wants to force Floyd or any church or minister to marry a same-sex couple. It’s not part of the agenda. But standing up to this non-existent threat apparently got Floyd a standing ovation.

Floyd isn’t the only one using this strategy. Last week, Texas Gov. Greg Abbott made a public fuss over signing the “Pastor Protection Act.” Abbott pretended that its passage was a huge victory for religious liberty, declaring that “pastors now have the freedom to exercise their First Amendment rights.”

In reality, the Texas law was unnecessary, as is Floyd’s brave bluster. The First Amendment is alive and well. Even if the Supreme Court strikes down state laws that keep same-sex couples from getting legally married, Southern Baptist clergy in Texas and every other state will still be free to preach their anti-gay message and refuse to marry same-sex couples. Even Robert Jeffress, a top Southern Baptist pastor and a Fox News contributor, recently told Bill O’Reilly that “nobody” in the anti-marriage equality movement believes that the government will force pastors to officiate same-sex couple’s weddings.

Floyd and Starnes are trying to muddy the religious liberty waters by equating two very different things: one -- requiring a minister to marry a couple against the teachings of his faith – would be an impermissible violation of religious liberty. The other – requiring government officials and people who run businesses serving the public not to discriminate against gay people or same-sex couples – is not.

North Carolina Pastor Speaks Out About Discriminatory 'Religious Freedom' Marriage Law

In response to a bill authorizing public officials to refuse to perform same-sex marriages becoming law in North Carolina this morning, Dr. Terence K. Leathers – a pastor at Mt. Vernon Christian Church in Clayton, North Carolina and a member of People For the American Way's African American Ministers In Action – released the following statement:

“Shame on our legislature for making this harmful and unnecessary bill become law. As a pastor, I believe this is not only a blow for the dignity of all North Carolinians but also a blow for true religious liberty.

“Governor McCrory did the right thing when he vetoed this bill, and the fact that our legislature overrode it shows just how far they will go in misusing the principle of religious liberty in order to discriminate. This is a sad day for our state.”

Last week, Dr. Leathers published an op-ed in The Huffington Post calling on the legislature not to misuse religious freedom to license public officials to discriminate.

PFAW

Clayton, NC Pastor Speaks Out About Discriminatory Marriage Law

In response to a bill authorizing public officials to refuse to perform same-sex marriages becoming law in North Carolina this morning, Dr. Terence K. Leathers – a pastor at Mt. Vernon Christian Church in Clayton, North Carolina and a member of People For the American Way's African American Ministers In Action – released the following statement:

“Shame on our legislature for making this harmful and unnecessary bill become law. As a pastor, I believe this is not only a blow for the dignity of all North Carolinians but also a blow for true religious liberty.

“Governor McCrory did the right thing when he vetoed this bill, and the fact that our legislature overrode it shows just how far they will go in misusing the principle of religious liberty in order to discriminate. This is a sad day for our state.”

Last week, Dr. Leathers published an op-ed in The Huffington Post calling on the legislature not to misuse religious freedom to license public officials to discriminate.

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Promise Keepers Draws 'Battle Lines' And Demands 'No Compromise!'

Promise Keepers, a Christian “men’s ministry” founded by former Colorado football coach Bill McCartney, is celebrating its 25th year. The group’s current militarized language and imagery matches the increasingly violent rhetoric of resistance and revolution from the far right. It may also reflect the background of current PK President Dr. Raleigh Washington, described as a “20-year U.S. Army veteran.”

The group, which filled stadiums and attracted criticism for its patriarchal message in its 1990s heyday, has a smaller profile today. This year it is holding several gatherings, starting with one in Stockton, California, back in May, with other events following in Dallas in August; Pittsburgh in September (rescheduled from June); Rochester, Minnesota, in October; and Redmond, Washington, in November.  

The Promise Keepers website promotes the events with a headline: “BATTLE LINES: No Compromise!”

Today’s culture nurtures a popular misconception that tolerance is the only reasonable worldview. Unfortunately, this spirit of compromise on key moral and biblical issues has permeated both our culture and the church. Divorce and co-habitation rates continue to rise. Same-sex marriage is now accepted and abortion is still legal in our nation. Scripture is quite clear how we are to respond whenever the foundations of the Christian faith are under attack: our duty is to contend for the faith, without compromise.

In 1 John 1:5 John wrote, “This is the message which we have heard from Him and declare to you, that God is light and in Him is no darkness at all.” This is a very definitive statement. God is light. There are no shades of grey with God. He is Light and in Him, there is no darkness. What is light? It’s truth, and there is no compromising God’s Truth. There is no middle ground.

Considering the current times, as Promise Keepers, we must boldly and courageously stand for truth. We must defend biblical marriage, champion the life of the unborn and protect religious liberty. We cannot stand back and allow moral relativism, cultural decadence, spiritual apathy and ecclesiastical indifference to hinder us any longer. We must draw our battle lines without compromise.

The website declares, “Everything that Promise Keepers does centers on this central truth – obedience to the Word of God.” The website also encourages people to join the “One Message” movement, a project of Promise Keepers that is working to bring about the “greatest revival the world has ever known” – in fact, they say, it’s already under way:

The greatest revival the world has ever known – a revival prophesied by the Apostle Paul and affirmed by men like Jonathan Edwards and C. H. Spurgeon – has begun. And each of us has the amazing privilege of being a part of it.

This revival began 65 years ago, when the State of Israel – a nation that ceased to exist 2,000 years earlier – was reborn in a day. Since then, the Jewish people have been turning by thousands to recognize Yeshua (Jesus’ Hebrew name) as their long-awaited Messiah.

 

Religious Right Angry At Business Support For Marriage Equality

Conservative religious leaders have been delighted to work with parts of corporate America – most notably the Koch brothers’ political networks – to elect candidates who back right-wing social and economic policies. Religious conservatives have championed Citizens United and the demolition of regulations on campaign cash. The Kochs even promote Religious Right leaders who tell their followers that the Bible opposes minimum wage laws, unions, and progressive taxes. But many of America’s biggest companies have also become supporters of equality for gay, lesbian, bisexual and transgender people, and that’s making religious conservatives angry.

When a number of major corporations pushed back hard against an anti-gay “religious freedom” law in Indiana, Gov. Mike Pence asked the legislature to amend the law to state that it would not allow businesses to discriminate. And that made the Religious Right furious. Reliably pro-business Republican presidential candidates like Mike Huckabee, Ted Cruz, Rick Santorum, and Bobby Jindal have been attacking big business support for gay rights in a sometimes awkward attempt at right-wing populist rhetoric.

Today’s mail brought a direct mail letter from the Family Research Council’s Tony Perkins complaining, “Big Business has joined the anti-Christian bullies!” Perkins warns that “the seduction of Big Business by the homosexual rights movement is the main reason that movement has gained such momentum over our freedom to believe and live according to those beliefs.” Perkins asks for donations to “Stop Big Business’s Assault on Religious Freedom” and to support an FRC initiative to talk to business leaders and bring them around.

Another direct mail piece from Perkins, this time for FRC’s political arm, FRC Action, arrived the same day, in an envelope emblazoned with, “When you can’t make a living because you’re a Christian…THAT’S NOT FREEDOM.” The letter complains that “big corporations are foolishly aligning with the Left’s social agenda” and pledges that FRC Action will help states “create and pass a protective wall of religious freedom laws.” Perkins gripes about business opposition to Indiana’s Religious Freedom Restoration Act:

The media published incredible false claims about what the law said and what the law would do. Hollywood celebrities, giant corporations, sports leagues, and even other states became a national lynch mob. They threatened and enacted boycotts of the state.

Tragically the governor ultimately caved in to these pressures. With the corporate community threatening boycotts and economic loss to the state, it appears that many political leaders in the state were more concerned about economic issues than moral truth, religious freedom, and the well-being of the family.

Over at conservative journal First Things, University of Notre Dame Professor Patrick Deneen says it is clear that in Indiana, “Republicans and Christians lost, Democrats and gay activists won.” (Of course this simplistic formulation ignores the Christian leaders who were allied with LGBT activists in opposing the law.) Deneen, a critic of both corporate capitalism and liberal democracy, blames the outcome in Indiana on business involvement:

Had the only appreciable opposition to RFRA come from gay rights activists, RFRA would have been a smashing political success for Republicans. It would have made the right enemies while generating gratitude and energy in the base. They did not expect their usual friends in corporate America to join the opposition, which was an idiotic miscalculation given the fact that establishment outrage scuttled the Arizona RFRA last year.

Deneen wrote last year that “The modern corporation and modern marriage are born of the same philosophical roots: rootless individuals seeking self-gratification in whatever way they see fit, short of ‘harming’ another.” In his First Things article, he portrays corporations standing with LGBT groups as a smart business decision given pro-gay shifts in public attitudes. But he calls the gay-rights collaboration between cultural and economic “elites” a dangerous alignment that is “ready to steamroll anyone in their way.” After Indiana, he says, “religiously based opposition to gay marriage is now more likely than ever to be treated by our society as tantamount to a hate crime,” and warns that the “elite-sanctioned attack on ‘bigotry’” will “reach inevitably into the sanctuaries of the churches themselves.”

Rebuffed by Republican Legislators, Bobby Jindal Issues Executive Order on 'Religious Liberty'

In a Republican presidential field crowded with far-right candidates, Louisiana Gov. Bobby Jindal is trying to distinguish himself as the far-rightest candidate, especially on issues relating to marriage equality and its supposed threat to the religious freedom of conservative Christians.

Jindal’s latest came at the end of the day on Tuesday. Unwilling to accept the legislature’s failure to pass a so-called “religious liberty” bill (it was voted down 10-2 in a House committee), Jindal issued an executive order designed to protect any person who “acts in accordance with a religious belief that marriage is between one man and one woman.” The order explicitly defines “person” to include for-profit corporations and well as nonprofit organizations.

Jindal has adopted the rhetorical strategy promoted by the National Organization for Marriage and other opponents of LGTB equality: try to turn conversation about anti-gay discrimination “on its head” by declaring that laws protecting gay people are actually a form of discrimination against Christians. His statement about the executive order said it was designed to “prevent the state from discriminating against persons or entities with deeply held religious beliefs that marriage is between one man and one woman.”

Jindal’s order invokes the Supreme Court’s decision in Hobby Lobby, making it the latest sign that the decision – which granted corporations a right to claim legal exemptions based on the religious beliefs of company owners -- poses a threat to nondiscrimination measures and potentially a wide range of laws protecting the interests of workers. Jindal declared that his order is “not about discrimination,” even though its clear intent is to give legal cover to companies, government officials, and others who discriminate against same-sex couples.

Louisiana does not currently give legal recognition to same-sex couples, but Jindal is concerned that the state’s ban on marriage equality may soon be struck down by the Supreme Court, a potential ruling which his order seems to be a legally questionable effort to pre-empt. Jindal should be asked to clarify exactly what actions his legislation is designed to “protect”: a courthouse clerk who refuses to process marriage license paperwork? Religious schools getting tax dollars under Jindal’s education policy refusing to accept children of gay parents? Catholic hospitals refusing to recognize the spousal or parental rights of gay couples during medical emergencies?   

Jindal’s “religious liberty” bill had been opposed by business and tourism leaders as well as civil rights groups. The New Orleans Times Picayune reports that the New Orleans Convention and Visitors Bureau CEO Stephen Perry had called the bill “a radioactive, poisonous message.”

But Jindal’s primary audience is no longer his Louisiana constituents; it's right-wing activists nationwide. Jindal boasted about the executive order by stopping by the radio program hosted by Family Research Council President Tony Perkins, an anti-gay activist who once suggested that LGBT non-discrimination measures would lead to the Holocaust perpetrated against Christians.

Right-wing pundit and Iowa GOP activist Steve Deace reacted rapturously, proclaiming Jindal his “winner of the week” for standing up to “Republicrats.”

Jindal immediately stepped in and ordered that while he’s governor the state government is not going to be a tool of the Cultural Marxists’ Rainbow Jihad against religion — particularly Christianity….

This action by Jindal is an example of what will be required of the next president if he’s going to truly honor his oath of office to defend our Constitution against all enemies — “both foreign and domestic.”

Let’s face it, the vast majority of alleged conservatives won’t stand up to the Democrats. And almost none of them will stand up to the Republicrats. On perhaps the most important issue of them all — the First Amendment that allows us the freedom to peacefully and publicly stand on principle for everything else — Jindal has done both.

But he didn’t just stand up to them rhetorically, he actually did something about it. There are several potentially exciting presidential candidates this cycle. There’s even a couple that like Jindal have shown they will tell the Republicrats bleeding us dry to stick it where the sun doesn’t shine.

PFAW

Rebuffed by Republican Legislators, Bobby Jindal Issues Executive Order on 'Religious Liberty'

In a Republican presidential field crowded with far-right candidates, Louisiana Gov. Bobby Jindal is trying to distinguish himself as the far-rightest candidate, especially on issues relating to marriage equality and its supposed threat to the religious freedom of conservative Christians.

Jindal’s latest came at the end of the day on Tuesday. Unwilling to accept the legislature’s failure to pass a so-called “religious liberty” bill (it was voted down 10-2 in a House committee), Jindal issued an executive order designed to protect any person who “acts in accordance with a religious belief that marriage is between one man and one woman.” The order explicitly defines “person” to include for-profit corporations and well as nonprofit organizations.

Jindal has adopted the rhetorical strategy promoted by the National Organization for Marriage and other opponents of LGBT equality: try to turn conversation about anti-gay discrimination “on its head” by declaring that laws protecting gay people are actually a form of discrimination against Christians. His statement about the executive order said it was designed to “prevent the state from discriminating against persons or entities with deeply held religious beliefs that marriage is between one man and one woman.”

Jindal’s order invokes the Supreme Court’s decision in Hobby Lobby, making it the latest sign that the decision – which granted corporations a right to claim legal exemptions based on the religious beliefs of company owners -- poses a threat to nondiscrimination measures and potentially a wide range of laws protecting the interests of workers. Jindal declared that his order is “not about discrimination,” even though its clear intent is to give legal cover to companies, government officials, and others who discriminate against same-sex couples.

Louisiana does not currently give legal recognition to same-sex couples, but Jindal is concerned that the state’s ban on marriage equality may soon be struck down by the Supreme Court, a potential ruling which his order seems to be a legally questionable effort to pre-empt. Jindal should be asked to clarify exactly what actions his legislation is designed to “protect”: a courthouse clerk who refuses to process marriage license paperwork? Religious schools getting tax dollars under Jindal’s education policy refusing to accept children of gay parents? Catholic hospitals refusing to recognize the spousal or parental rights of gay couples during medical emergencies?   

Jindal’s “religious liberty” bill had been opposed by business and tourism leaders as well as civil rights groups. The New Orleans Times Picayune reports that the New Orleans Convention and Visitors Bureau CEO Stephen Perry had called the bill “a radioactive, poisonous message.”

But Jindal’s primary audience is no longer his Louisiana constituents; it's right-wing activists nationwide. Jindal boasted about the executive order by stopping by the radio program hosted by Family Research Council President Tony Perkins, an anti-gay activist who once suggested that LGBT non-discrimination measures would lead to the Holocaust perpetrated against Christians.

Right-wing pundit and Iowa GOP activist Steve Deace reacted rapturously, proclaiming Jindal his “winner of the week” for standing up to “Republicrats.”

Jindal immediately stepped in and ordered that while he’s governor the state government is not going to be a tool of the Cultural Marxists’ Rainbow Jihad against religion — particularly Christianity….

This action by Jindal is an example of what will be required of the next president if he’s going to truly honor his oath of office to defend our Constitution against all enemies — “both foreign and domestic.”

Let’s face it, the vast majority of alleged conservatives won’t stand up to the Democrats. And almost none of them will stand up to the Republicrats. On perhaps the most important issue of them all — the First Amendment that allows us the freedom to peacefully and publicly stand on principle for everything else — Jindal has done both.

But he didn’t just stand up to them rhetorically, he actually did something about it. There are several potentially exciting presidential candidates this cycle. There’s even a couple that like Jindal have shown they will tell the Republicrats bleeding us dry to stick it where the sun doesn’t shine.

 

Albert Mohler at CNP: Freedom To Preach Gospel Threatened By 'Erotic Liberty'

The secretive Council for National Policy (CNP) and the Conservative Action Project, right-wing coalitions that are trying to figure out how to get conservative evangelicals united around one of the many GOP presidential candidates vying for their support, met outside Washington, D.C. late last week to vet the presidentials and strategize for 2016.

While most of what happens at CNP gatherings is kept behind closed doors, the Southern Baptist Theological Seminary (SBTS) was happy to brag that its president, Albert Mohler, had received the 2015 Edwin Meese III Originalism and Religious Liberty Award from the Alliance Defending Freedom on Friday. The award was presented by ADF’s Alan Sears and the Family Research Council’s Tony Perkins, identified by the SBTS as president of the CNP.

Meese, who played a major role in the rise of the Federalist Society and the right-wing school of constitutional interpretation known as “originalism”— colloquially referred to as “strict constructionism” — was on hand for the event.  According to the SBTS account, Meese said originalism and religious liberty “go hand-in-hand” and asserted that “religious liberty is under attack as never before” in America.

That was also the theme of Mohler’s remarks, which took their title, “The Gathering Storm: The Eclipse of Religious Liberty and the Threat of a New Dark Age,” from Winton Churchill’s account of the period leading up to the World War II. “We are not facing the same gathering storm,” Mohler declared, “but we are now facing a battle that will determine the destiny of priceless freedoms and the very foundation of human rights and human dignity.”

Other excerpts from Mohler’s speech:

A revolution in morality now seeks not only to subvert marriage, but also to redefine it, and thus to undermine an essential foundation of human dignity, flourishing, and freedom….

Already, religious liberty is threatened by a new moral regime that exalts erotic liberty and personal autonomy and openly argues that religious liberties must give way to the new morality, its redefinition of marriage, and its demand for coercive moral, cultural, and legal sovereignty.

A new moral and legal order is ascendant in America, and this new order is only possible, in the arena of American law and jurisprudence, if the original intent and the very words of the Constitution of the United States are twisted beyond recognition….

We are in a fight for the most basic liberties God has given humanity, every single one of us, made in his image. Religious liberty is being redefined as mere freedom of worship, but it will not long survive if it is reduced to a private sphere with no public voice. The very freedom to preach the Gospel of Jesus Christ is at stake, and thus so is the liberty of every American. Human rights and human dignity are temporary abstractions if they are severed from their reality as gifts of the Creator. The eclipse of Christian truth will lead inevitably to a tragic loss of human dignity. If we lose religious liberty, all other liberties will be lost, one by one. I am a Christian, and I believe that salvation is found in no other name than Jesus Christ and in no other gospel, but I will fight for the religious liberty of all.

 

Diversity vs. Scalia at Marriage Oral Arguments

Bringing her own experience to the bench, Justice Kagan helps Justice Scalia with a point that should have been obvious to him.
PFAW Foundation

Bob Vander Plaats Warns Of Divine Retribution For Wiccan Prayer In Iowa State Capitol

The decision of an Iowa state representative to invite a Wiccan priestess to give an opening invocation at the state capitol last week put the Religious Right group The Family Leader in a bit of a bind, since although the group was unhappy with the decision, it was that very day set to host four potential GOP presidential candidates at a forum centering on supposed threats to religious liberty in America.

In the end, the group responded by holding a voluntary alternative prayer service in the capitol for legislators who wanted to skip what ended up being a fairly mundane invocation from the priestess. Family Leader president Bob Vander Plaats warned that it was a “stunning development” with a potential “spiritual ramification” and quoted a verse from Ephesians about spiritual warfare against the “forces of evil,” but didn’t go so far as to say that the Wiccan priestess didn’t have the right to pray at the capitol.

But in a speech that evening to a forum that included likely GOP presidential contenders Rick Perry, Mike Huckabee, Rick Santorum and Bobby Jindal, Vander Plaats — after declaring the supposed threats to the religious liberty of conservative Christians would be "the key issue of the 2016 campaign"  made it clear that while it was “totally within the religious right” to invite a Wiccan to deliver a prayer at the capitol, it might in fact give God reason to withdraw his blessing from America.

Vander Plaats led into the story by recalling that after the September 11, 2001, terrorist attacks, there was “red, white and blue everywhere,” churches “were filled to overflowing,” and lawmakers of both parties were joining together to sing “God bless America.”

“Almost 14 years later, where are we at?” he demanded. “Just this morning, in the Iowa capitol, which is totally within the religious right, but you had a state representative invite someone to deliver a Wiccan prayer. Now, you may say that’s religious liberty, but I’d say you’d better be careful if you want to start mocking the God that you’re asking to bless this country. That’s a huge concern.”

Discrimination Masked as Religious Freedom? Not in My Name.

This op-ed by Rev. Timothy McDonald III, co-chair of People For the American Way's African American Ministers in Action, was originally published at The Huffington Post.

Last week, a bill disguised as a "religious liberty" measure that would give a green light to discrimination was passed by the Georgia Senate and will now go to the House.

As a Baptist pastor, I feel called to weigh in on a proposal that is supposedly designed to protect religious rights in my state. I fully support every person's constitutionally-protected right of the free exercise of religion. The right to pray to whatever God you believe in and freely practice your religion is a fundamental one, and one that must be protected.

But I do not support this bill, which is not a true effort to protect First Amendment rights. And the fact that supporters in the state Senate quickly and unexpectedly brought it up in committee when no Democrats were present makes me wonder if even proponents aren't so sure of its merit.

The proposed bill is modeled on a national religious freedom bill that passed in 1993, and supporters claim that it would shield people of all religions from government intrusion. In reality, this is a bill that threatens to allow businesses and individuals to simply flout the laws they don't like. It threatens to turn "religious liberty" law from a shield to guard individual liberties into a sword to bring harm to others.

For example, what happens if medical workers, citing religious beliefs, decide that they won't treat gay or transgender people? If business owners decide that they won't serve Muslims or interracial couples? If landlords decide they won't rent to single women? Beyond anti-discrimination protections, what happens if individuals or business owners claim they are exempt from any number of laws they disagree with? What happens, for example, if employers decide that paying their workers a minimum wage goes against their religious beliefs? Do we want to live in a society where your legal rights depend on the religious beliefs of others in the community?

Basic rights and equality should never yield to discrimination.

Other religious leaders here in Georgia aren't fooled, either. Working with a group of more than 160 clergy across the state, we have been asking our elected officials to abandon this misguided project, urging them not to pass any so-called "religious freedom" legislation that could lead to widespread discrimination. Handing people the "right" to use the mantle of religious liberty to harm others? Not in our name.

It's clear that rather than fixing a problem, as good public policy should, this bill would create problems, and often for those most vulnerable among us.

Even former state attorney general Michael Bowers, who once fought in favor of anti-gay "sodomy" laws, has called the bill "nothing but an excuse to discriminate," saying it is "ill-conceived, unnecessary, mean-spirited, and deserving of a swift death in the General Assembly."

I agree. My faith tells me that I should stand up for the marginalized. That I should speak out against proposals that could deny basic rights to others -- especially when it's being done in the name of religion.

PFAW

Religious Liberty: Shield or Sword?

Religious liberty is a treasured American value. Unfortunately, laws originally designed to shield individuals’ religious freedom have been turned into swords that, in the name of religion, harm other people and undermine measures to promote the common good.

PFAW Calls On RNC To Cancel Hate Group-Funded Israel Trip

Today People For the American Way President Michael Keegan sent a letter to Reince Priebus, chairman of the Republican National Committee (RNC), urging him to cancel a planned trip to Israel for roughly 60 RNC members that is organized by Christian-nation extremist David Lane and funded by the anti-LGBT hate group the American Family Association (AFA).

We’ve written quite a bit about the extremism of AFA and Lane, and the problems with the RNC associating with them.

The trip is scheduled to begin tomorrow.

Keegan wrote [PDF]:

Although we have no objection to RNC members travelling to Israel, we urge you not to collaborate with those who are funding and coordinating this trip. The American Family Association and Mr. Lane have made it clear that they view the Republican Party as a vehicle for ensuring that the U.S. government is operated by and for conservative Christians, at the expense of those of other faiths and no faith, and those Christians who do not share their particular beliefs.

Mr. Lane insists that the separation of church and state is a “fabricated whopper” meant to stop “Christian America — the moral majority — from imposing moral government on pagan public schools, pagan higher learning and pagan media” and has said that his “long-term strategy” is to place the Bible as “the principle [sic] textbook” in American public schools. Mr. Lane has also warned that an openly gay speaker at President Obama’s inauguration would provoke God to allow car bombings in major American cities.

The American Family Association also holds troubling views about the role of religion in American government and regularly promotes false smears against LGBT people. Although the AFA recently sought to distance itself from its own inflammatory spokesman, Bryan Fischer, it continues to offer him a prominent platform on its radio network, American Family Radio. And AFA still employs as its governmental affairs director Sandy Rios, who along with other radical statements, has warned that “powerful Jewish forces” are using groups like the American Civil Liberties Union to destroy America and just this week mocked the notion that “God is fond of atheist Jews who occupy the land in Israel.”

The American Family Association and David Lane have every right to promote these extreme views. However, it is troubling that a major political party is lending them legitimacy.

What Matt Barber Does And Doesn't Find Appalling

Yesterday, we reported that Matt Barber’s conservative website BarbWire published an anti-gay column by Philip Stallings, a self-described “theonomist” who recently advocated for the “lawful execution” of gay people – or “sodomites.”

Stallings’ column has disappeared, and today Barber tweeted at us, “Wow! Thanks for the tip. We obviously weren’t aware of that & find the position appalling. The answer is life in Christ.”

Well. It’s good to have Matt Barber say he finds the idea of executing gay people appalling. We agree.

But if that’s the case he ought to consider vetting the material he promotes a little more carefully. Just over a week ago we noted that BarbWire had run a column praising Pastor Steven Anderson, who has called for the execution of gays, and has said, “You want to know who the biggest hypocrite in the world is? The biggest hypocrite in the world is the person who believes in the death penalty for murderers and not for homosexuals.”

And given how much anti-gay extremism is promoted by Barber and his Religious Right allies, that got us wondering if anything else short of calling for the killing of gay people would cross the line for Barber.

We collected some other statements that Barber apparently doesn’t find appalling, because they’ve all been in columns promoted on his site:

Here are some other things we find appalling that Matt Barber seemingly does not:

Jeff Allen, a BarbWire editor, compares the gay rights movement to “a malignant cancer” and says, “Each victory for the homosexual activists represents another nail in America’s coffin.”  Allen has supported brutal anti-gay laws in Uganda, Nigeria, and Ethiopia, which include imprisonment not only for sexual conduct but also for joining social clubs or advocating for equality. Allen was upset when criticized for his “innocent mistake” of calling a fake photo of “NAMBLA for Obama” an example of “the undeniable link between homosexuality and pedophilia.” More Allen: “Satanism, sodomy, and slaughter are each part of the Devil’s sinister agenda to destroy America.”

BarbWire content editor Gina Miller has written that the “demonic” gay rights advocates are advancing “Satan’s tyrannical desire to crush Christianity” and warned last year that if gays get their way “Christians here in America will be in danger of state-sanctioned murder for their beliefs.” In June, Miller responded to the announcement that some Boy Scout troops would march in New York’s LGBT pride parade by calling it “a perverse attack on young boys who are being used as little tools by an evil movement of sexual degenerates who cannot reproduce, so they must recruit.”

This spring, BarbWire published a column by former Indiana lawmaker Don Boys recounting his attempt to recriminalize homosexuality. In a similar column a few years earlier, Boys had explained that he wanted to make homosexuality a crime punishable by up to twelve years in prison.

Robert Oscar Lopez wrote for BarbWire that almost every situation “involving a same-sex couple with exclusive custody of small children is adult misconduct at best or a crime against humanity at worst.”

BarbWire publishes notorious anti-gay activist Scott Lively, who wrote this summer that the US and its State Department had become “The Great Satan” of the world for opposing anti-gay legislation overseas. Lively has promoted anti-gay policies in Uganda and around the world.

And that’s just a sampling of the anti-gay extremists who have found a home on BarbWire. Not to mention Barber himself, who says he has been “called by God” to “sound the alarm” about the fact that gay sex is always sinful, and “The wages of sin is death.”

We’re just scratching the service. BarbWire’s extremism is not limited to anti-gay activities. It publishes just about anything you could imagine about President Barack Obama. BarbWire has published calls for God to “cut short” Obama’s presidency and claims Obama worships “Lucifer/Moloch” and intends “to turn the USA into the Marxist-Islamic North American Caliphate.” Among the conspiracy theories it promotes:

We don’t know about Barber, but we find that appalling. 

Supreme Court Action on Marriage Cases Is No Surprise

In last month's Supreme Court Term Preview, PFAW Foundation explained why most Justices might very well want to avoid taking the then-pending marriage cases.
PFAW Foundation

Becket Fund Pretends It's Not Fighting The Culture Wars

Politico is up with a profile of the Becket Fund, one of the Religious Right legal groups that has pushed, via Hobby Lobby and related cases, to expand the definition of “religious liberty” to allow corporations and individuals as well as religious institutions to opt out of laws they say violate their religious beliefs.

The article by Amelia Thomson-DeVeaux quotes Stanford Law School professor Michael McConnell saying nice things about Becket, but it doesn’t mention that Becket steered $1.6 million to Stanford and McConnell for a religious liberty law clinic that opened at the school last year.

In Politico, McConnell attributes to Becket the idea that religious freedom “is not – in most contexts – a culture war issue.” At a forum on religious liberty at the Newseum last year, Becket’s Mark Rienzi also suggested that religious liberty is not a culture war issue.

In reality, redefining “religious liberty” has become the central culture war issue and the primary legal and public relations strategy chosen by conservative evangelicals and their allies in the Catholic hierarchy to resist the advance of LGBT equality and restrict women’s access to reproductive care. Becket is at the center of this strategy. A corollary strategy is portraying Christians in America as the victims of religious persecution; Becket lawyers appear in Rick Santorum’s latest movie, “One Generation Away: The Erosion of Religious Liberty.”

While it is true that support for religious freedom crosses political and religious lines, and it is admirable that Becket, unlike some other Religious Right legal groups, defends the freedom of religious minorities as well as conservative Christians, it is hard to accept with a straight face the idea that Becket’s lawyers are not culture warriors.

Let’s review some of Becket’s culture-war credentials:

  • In addition to Robert George, the intellectual force behind the Manhattan Declaration and the Catholic bishops’ “religious liberty” strategy, Becket’s board includes culture warriors like the Family Research Council’s Ken Blackwell and right-wing mega-funder Sean Fieler.
  • Earlier this year, Becket celebrated the Supreme Court’s ruling in Town of Greece v. Galloway, in which the Court upheld sectarian prayer at official public meetings and narrowly defined what would amount to unconstitutional religious coercion of people attending those meetings. Becket signaled that it hoped the decision would lead to the further dismantling of court rulings that uphold church-state separation.
  • Last year a Becket blog post about a legal victory for a Colorado voucher program that diverts public education funds to religious schools was headlined “Needy Kids 1, Anti-Catholic Bigots 0.”
  • In the fall of 2012, Becket co-sponsored an event for the Manhattan Declaration — itself a call to the culture-war barricades. According to an admiring report by Mark Tooley of the Institute on Religion & Democracy, Becket President William Mumma “noted that in today’s culture wars ‘religion is not an accidental victim, it is the target’ for radical secularists. ‘When government tries to murder religion it may murder religious liberty but not religion,’ he promised, as faith will survive amid persecution.”
  • Becket’s executive director Kristina Arriaga joined hard-core culture warriors in supporting the Pray and A.C.T. group created by dominionist Lou Engle in advance of the 2010 elections.
  • In 2008 Becket ran a full-page ad in the New York Times charging that anti-Prop 8 protesters were “thugs” engaged in a “religious war” of violence and intimidation against the Mormon church; founder Kevin “Seamus” Hasson responded to criticism with a comparison of “radical secularist” Prop 8 protestors to radical Islamist terrorists.

Winners of Becket’s Canterbury Medal over the past decade include Robert George; ultraconservative Philadelphia Archbishop Charles Chaput, who has waged what a local columnist called a “war on Obama” over the HHS mandate; Eric Mataxas, the author whose 2012 prayer breakfast speech delighted right-wing activists with its thinly veiled attacks on President Obama’s faith; and Mormon Apostle Dallin H. Oaks, a strong defender of the LDS Church’s anti-equality efforts.

One more quibble with the Politico story: its headline – “God’s Rottweilers” – does give a sense of the group’s intensity, but it also implies that Becket is working for God. Media coverage all too often portrays culture war issues as a struggle between religious people and “radical secularists” when in fact there are also many religious individuals and organizations actively opposed to the Religious Right’s agendas on LGBT equality, women’s access to reproductive care, and the relationship between church and state.

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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