Supreme Court

Mike Huckabee: 'There Will Be No Abortion' When I'm President

At Friday’s “Presidential Family Forum” hosted by the Iowa conservative group The Family Leader, Mike Huckabee doubled down on his pledge to “ignore the court” and “defy the court” as president by recriminalizing abortion and gay marriage through executive fiats.

“I’m convinced the next president should ignore the unconstitutional and illegal rulings of the courts, including that of same-sex marriage, because it is not the law of the land,” Huckabee said.

He also reiterated his plan to outlaw abortion with a sweeping presidential decree: “We [should] simply say, there will be no abortion because that unborn child is a person.”

Only then, Huckabee argued, would God be able to bless America.

Supreme Court Takes Up Most Significant Reproductive Rights Cases in Decades

This post originally appeared on the Huffington Post.

The Supreme Court announced today that it will decide on the constitutionality ofsevere restrictions adopted in Texas that threaten to make it virtually impossible for many women there to obtain safe and legal abortions.

Coupled with the Court's recent decision to hear cases on whether certain employers can effectively deny their female employees the contraceptive coverage they are entitled to receive under the Affordable Care Act (ACA), the 2015-16 Supreme Court term could well become the most significant for women's reproductive rights since the Court upheld the right to choose in Planned Parenthood v. Casey in 1992 -- and almost as significant as when the Court overturned a law banning contraception 50 years ago in Griswold v. Connecticut.

The Texas case, Whole Woman's Health v. Cole, concerns a law imposing restrictions on clinics so severe that they would reduce the number of clinics that perform abortions in the state from more than 40 a few years ago to just 10, including none at all in the 500 miles between San Antonio and the New Mexico border. The state has claimed that the limits, requiring extensive hospital-like equipment and doctors with hospital admitting privileges even for clinics that offer abortions only through oral medication, are important to protect women's health.

These claims are belied not only by the medical evidence, but also by Texas politicians'; statements, such as Governor Rick Perry's vow to "pass laws to ensure" that abortions are "as rare as possible."

That law clearly violates the 5-4 ruling of the Court in Casey, which upheld the basic right to choose of Roe v. Wade, and held that such laws must truly be important to protect women's health and not impose an "undue burden" on that right. Will the Court uphold and correctly apply Casey and continue to protect reproductive rights? Given the stark divisions on the Court, the answer may well come down to the vote of Justice Anthony Kennedy, the last member of the five-person Casey majority who is still on the Court today.

The Court has also agreed to hear what many are already calling "Hobby Lobby II." Last year, the Court ruled 5-4 that owners of for-profit companies like Hobby Lobby could use the Religious Freedom Restoration Act (RFRA) to raise religious objections and exempt themselves from providing contraceptive coverage to female employees as required by the ACA. To do so, the Court suggested that the companies could use the opt-out mechanism available to religiously-affiliated colleges and other nonprofits and inform the government of their religious objections, so the government could arrange for insurers to provide the coverage without cost to the employer.

Now, however, many of these nonprofits are claiming that the opt-out mechanism itself violates RFRA. In other words, they want to not just refuse to provide contraceptive coverage to their employees, they also want to make sure the government cannot make other arrangements, so that the women will be deprived of contraceptive coverage guaranteed by the ACA.

Seven out of eight lower federal appeals courts have rejected these claims, ruling that simply telling the government of their objections and the identity of their insurer is not a "substantial burden" on nonprofits' religious free exercise under RFRA and that the government has a compelling interest in providing contraceptive coverage.

Justice Kennedy, who provided the fifth vote in Hobby Lobby, suggested in a concurring opinion that the opt-out was an appropriate accommodation. But if the Court upholds the nonprofits' objections in Zubik v. Burwell, the result will be devastating to the ability of women to get contraceptive coverage, especially since for-profit companies like Hobby Lobby will likely make the same claim that religion allows them also to completely deprive their female employees of contraceptive coverage. Although not as coercive as the Connecticut ban on contraceptives overruled in Griswold, the result could well be even more devastating to reproductive freedom across the country, allowing employers to transform RFRA from a shield to protect religion into a sword to harm reproductive rights.

Both the clinic and the contraceptive cases are highly likely to produce divided 5-4 decisions that will be enormously important to women' reproductive rights. With four of the justices in their 80s during the term of the president elected next year, these cases once again demonstrate the crucial stakes in the 2016 election for reproductive rights, as well as for so many other rights central to our liberty and freedom.


Supreme Court Takes Up Major Test Of Anti-Choice Movement's Strategy

The Supreme Court announced today that it will hear Whole Women’s Health v. Cole next term. The case, which deals with abortion restrictions that Texas passed in 2013, represents a major test of the anti-choice movement’s long-term strategy of cutting off abortion access through incremental legislation rather than directly challenging the right to abortion. This comes after the court’s announcement last week that it will hear another challenge to the Affordable Care Act’s contraception coverage mandate, testing how far the Religious Right can stretch the meaning of religious liberty in attempting to cut off access to reproductive rights.

In the Huffington Post today, People For the American Way’s Elliot Mincberg explains what’s at stake in the Texas case:

The Texas case, Whole Woman’s Health v. Cole, concerns a law imposing restrictions on clinics so severe that they would reduce the number of clinics that perform abortions in the state from more than 40 a few years ago to just 10, including none at all in the 500 miles between San Antonio and the New Mexico border. The state has claimed that the limits, requiring extensive hospital-like equipment and doctors with hospital admitting privileges even for clinics that offer abortions only through oral medication, are important to protect women’s health. These claims are belied not only by the medical evidence, but also by Texas politicians’ statements, such as Governor Rick Perry’s vow to “pass laws to ensure” that abortions are “as rare as possible.”

That law clearly violates the 5-4 ruling of the Court in Casey, which upheld the basic right to choose of Roe v. Wade, and held that such laws must truly be important to protect women’s health and not impose an “undue burden” on that right. Will the Court uphold and correctly apply Casey and continue to protect reproductive rights? Given the stark divisions on the Court, the answer may well come down to the vote of Justice Anthony Kennedy, the last member of the five-person Casey majority who is still on the Court today.

This case represents the culmination of a decades-long strategy by the anti-choice movement — most notably the legal group Americans United for Life, which helped draft the Texas bill — to restrict abortion access to the point where the right to abortion exists in theory but not in practice. If the Supreme Court agrees to further weaken the protections of Roe v. Wade, it could open the door for many more onerous restrictions on abortion providers and women seeking abortions.

David Vitter: Gays Have 'Shoved' Same-Sex Marriage 'Down The Throats' Of Christians

Sen. David Vitter, R-La., addressed the Jefferson Baptist Church in Baton Rouge yesterday in an attempt to burnish his conservative credentials as he campaigns for governor.

Vitter, who is perhaps best known for his involvement in a prostitution scandal, announced at the beginning of his speech that he had received the endorsements of a number of Religious Right activists and organizations, including Family Research Council President Tony Perkins, a former Louisiana state lawmaker.

In his speech, Vitter criticized the notion of the separation of church and state and denounced the Supreme Court’s landmark marriage equality decision, claiming that gay rights advocates want their views “shoved down the throats of folks who have sincerely held religious views that marriage is between one man and one woman.”

After declaring his support for a bill that grants legal protections to those who oppose same-sex marriage, Vitter said that the Supreme Court’s marriage ruling “will clearly unleash all sorts of assaults against conservative Christian beliefs who believe that marriage is between one man and one woman. And make no mistake about it, those assaults are coming on churches, pastors and believers who are trying to live their faith in a quiet but important way, including in terms of how they choose to live their lives and run their businesses.”

“They want to make believers like us second class citizens,” he said. “They want to completely push us out of the public square and in some cases persecute folks who simply want to live their faith in terms of how they do business and other things.”

SCOTUS Will Hear Latest Contraception Coverage Refusal Cases

The premise of these challenges to the ACA's contraception coverage accommodation is a severe distortion of religious liberty.
PFAW Foundation

SCOTUS Will Hear Latest Contraception Coverage Refusal Cases

The Supreme Court today announced that it will hear several cases involving the accommodation for religious nonprofits seeking to opt out of the Affordable Care Act’s contraception coverage requirement.  This is not a surprise; as People For the American Way Foundation wrote in its Supreme Court 2015-2016 Term Preview:

Under the accommodation, the employers simply tell the insurer or the federal government of their objection, at which point the insurer must offer the coverage separately to employees who want it. This way, the employees can get the coverage without their employers having to contract, arrange, or pay for it.  But some religious nonprofits assert that even the accommodation violates their religious liberty under the Religious Freedom Restoration Act (RFRA).  Under RFRA, no federal law imposing a substantial burden on religious exercise can be sustained unless it is the least restrictive means of achieving a compelling government purpose.

The list of circuit courts that have roundly rejected this argument is long:  The DC Circuit, the Second Circuit, Third Circuit, the Fifth Circuit, the Sixth Circuit, the Seventh Circuit, and the Tenth Circuit.  But in September 2015, the Eighth Circuit ruled in favor of the nonprofits and found the accommodation violated RFRA.  Now that there is a circuit split, it seems likely that the Supreme Court will take up the issue via the appeals from one or more of these circuit decisions.

The premise of those challenging the accommodation is a severe distortion of RFRA and of the very concept of religious liberty set forth by the Court’s hard-right conservatives in the 5-4 ruling in Hobby Lobby.  That law was passed with overwhelming bipartisan support in 1993 as a means to protect the free exercise of religion.  But conservative ideologues have sought to transform RFRA from a shield into a sword, one that they can use to violate the rights of third parties.  The right wing’s enthusiastic embrace of Kentucky county clerk Kim Davis shows just how far they want to extend the reasoning of Hobby Lobby.

Here, the conservatives argue that filling out a form so that insurance companies can know about their legal obligations to provide certain coverage is a substantial burden on the exercise of their religion.  That strained reasoning is a cynical use of religion to deprive women of needed healthcare, an effort to force women employees to live by their employers’ religious strictures rather than their own.  But what the Supreme Court said about the First Amendment in a 1985 case called Estate of Thornton v. Caldor is equally true of RFRA:

The First Amendment . . . gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities. [quoting from a lower court opinion by Judge Learned Hand]

Justice Kennedy, who voted with the Hobby Lobby majority, is likely to be the deciding vote in this case.  His concurrence in Hobby Lobby hinted that he might not go as far as his fellow conservatives in granting people the latitude to use RFRA to deprive others of their rights:

Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion.  Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.  In these cases [involving for-profit employers] the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here [the accommodation for religious non-profits].

Given the circuit split on the accommodation for religious nonprofits, the Supreme Court had little choice but to take this issue on.  They do have a choice, however, in how they rule.  Hopefully, a majority of justices will take the first step in restoring RFRA to the law it was intended to be.

35 Years After Reagan's Election, His Justices Still Have a Huge Impact

The next president may pick 3-4 justices who could transform the Court for a generation.

Pat Robertson: Gay Marriage Will Legalize Pedophilia

Only Pat Robertson could manage to transform a question about why bad things happen to children into a rant about gay marriage, and the right-wing televangelist managed to do just that today on “The 700 Club.”

When a viewer wrote in to ask why God would allow tragedies like child abuse to occur, Robertson responded by whipping up fears that the Supreme Court’s marriage equality decision will pave the way for the legalization of pedophilia.

“The time is going to come in America, the Supreme Court said homosexuality is a constitutional right, now they’ve said homosexual marriage is a right, then they’re going to say polygamy is a constitutional right, then they’re going to say polyamory is a constitutional right, then they’re going to say pedophile [sic] is a constitutional right,” he said. “You mark my word. They’re talking about transgender and sex change and all of this stuff. We have lost our mind, collectively, and it’s going to get worse and worse and worse and worse. Trust me.”

He went on to say that “sex with little babies” is widely encouraged in Islam: “There is no such thing as pedophilia in that religion.”

How Conservative Justices Are Allowing Corporations To Bypass The Courts

If you ever think that courts don’t matter, ask yourself this: Why are major corporations and arch-conservative judges going to such lengths to prevent you from having your day in court when someone has violated your legal rights?

The New York Times has an in-depth three-part series of reports on arbitration, the system by which ordinary people are increasingly being coerced into surrendering their right to the protections provided by the American judicial system.

Agreements to resolve disputes by arbitration are increasingly becoming a standard part of the all-or-nothing contracts that enormous corporations force individuals to sign as a condition of doing business with them. With private arbitration, you surrender your right to a courtroom with a neutral judge and a wide variety of substantive and procedural protections for all parties.

Instead, the company picks a private arbitrator whose living depends on getting cases from corporate interests. The protections of the court system are cast aside. And you can’t have class action lawsuits, which are often the only way to hold wrongdoers accountable when they harm large numbers of individuals relatively small amounts, so it is often not worthwhile for a wronged party to pursue arbitration.

Contracts have existed for centuries. In theory, they are negotiated by two people or businesses in a process of give-and-take, where both parties fully understand what they are agreeing to. But as anyone who has cable TV or a cell phone can tell you, most contracts we sign are handed to us “as is,” take it or leave it.

If you don’t agree to the terms imposed by some enormous corporation with millions of customers, the cost to you (life without a phone) is a lot more than the cost to the company (the loss of one of millions of customers). With vastly unequal bargaining power, the consumer has little choice but to agree. And, in fact, most people sign consumer contracts or click the “I agree” box online with little to no knowledge or understanding of the agreement.

As the Times reports:

By inserting individual arbitration clauses into a soaring number of consumer and employment contracts, companies like American Express devised a way to circumvent the courts and bar people from joining together in class-action lawsuits, realistically the only tool citizens have to fight illegal or deceitful business practices.

Over the last few years, it has become increasingly difficult to apply for a credit card, use a cellphone, get cable or Internet service, or shop online without agreeing to private arbitration. The same applies to getting a job, renting a car or placing a relative in a nursing home.

By banning class actions, companies have essentially disabled consumer challenges to practices like predatory lending, wage theft and discrimination, court records show.

“This is among the most profound shifts in our legal history,” William G. Young, a federal judge in Boston who was appointed by President Ronald Reagan, said in an interview. “Ominously, business has a good chance of opting out of the legal system altogether and misbehaving without reproach.”

How did we reach a point where individuals can be routinely victimized by large corporations and denied access to the courts to vindicate their legal rights?

To a great extent, the blame can be laid at the feet of five people: The conservative majority of the Supreme Court. Their devastating 5-4 rulings like those eviscerating the Voting Rights Act or allowing billionaires and special interests to spend unlimited money in politics are well known. Less well known are 5-4 decisions in arbitration cases. Particularly notorious are AT&T v. Concepcion, where the conservatives ruled that giant corporations can use arbitration agreements to undermine state consumer protection laws across the country, and American Express v. Italian Colors Restaurant, where the conservatives empowered monopolists to use arbitration agreements to bypass federal antitrust laws.

As if this weren’t bad enough, arbitration is hardly the only weapon corporate interests are using to block their victims from vindicating their rights in court.

In fact, just today, the Supreme Court is hearing oral arguments in Spokeo v. Robins, where corporate interests claim that their victims can’t sue in federal court if their “only” injury is that a right created by Congress was violated.

Last month, the Court heard oral arguments in Campbell-Ewald Company v. Gomez, where a large company argued for the power to terminate a class action suit against it early on by quickly offering a settlement to the lead plaintiff representing the class.

Fair and just courts are vitally important in providing equal justice under the law to those who would otherwise be powerless against the enormous entities who have so much more power and resources. So it is no surprise that those powerful interests are so dedicated to blocking ordinary people from having their day in court.

Reposted from People For the American Way Foundation.

Eliminating Courts, Eliminating Justice

Courts matter. That's why powerful interests are so dedicated to blocking ordinary people from having their day in court.
PFAW Foundation

At World Congress of Families, Anti-Choice Activists Celebrate Victories & Map Strategy To Overturn Roe v Wade

The first day of the World Congress of Families summit in Salt Lake City was focused on restricting access to abortion — the program described the day’s theme as “the value of life in all its stages and conditions.” 

During one anti-abortion panel, Charmaine Yoest of Americans United for Life — which Miranda once described as a sort of ALEC of the anti-choice movement —  celebrated the movement’s recent successes and mapped out a cultural and legal strategy to overturn Roe v. Wade, a strategy grounded in portraying abortion as harmful to women and the pro-life movement as pro-women.

Yoest told the audience to be encouraged, citing a graph from the pro-choice Guttmacher Institute showing that “more abortion restrictions have been enacted since the tidal wave election of 2010 than were enacted in the entire previous decade.” Said Yoest, “I’m really proud of this progress, because it comes from a deliberate strategy that we have enacted as a movement to concentrate on state legislatures.”

Yoest said after the 1983 failure to pass a constitutional amendment in Congress, activists convened their own congress and strategized.

“We came up with a strategy and emerged with a plan: focus on the statehouses and test the limits of Roe v. Wade. The story of the next several decades is one of trench warfare and gaining ground under the radar.”

This summer, she said, the Planned Parenthood videos have provided an “earthquake” which gives anti-abortion movement an opportunity to move forward strategically. [See PFAW’s report on the anti-Planned Parenthood attacks.] The legal strategy is aimed at Supreme Court Justice Anthony Kennedy’s writing that overturning Roe would come with a “certain cost” to women who rely on it. “As pro-lifers, we need to understand that that’s the way he thinks, and his fellow justices on the court,” said Yoest. “But they are ignoring that there is a certain cost to the culture of death.”

Yoest said abortion brings women grief and dramatically increases a woman’s suicide risk. “What an Alice in Wonderland world that we live in where the defenders of so-called women’s health are the promoters of abortion. Let’s call them abortion harm deniers.”

Yoest cited Ruth Bader Ginsburg writing in dissent in Gonzales v. Carhart that “women cannot enjoy equal citizenship status” without access to abortion. And she quoted a feminist author telling women who have had abortion that she hopes they will begin to know their own power.

Ladies and gentlemen, our strategy for the next decade must engage this debate. Abortion for women is not power; it is poverty….

This is our way forward. We must engage a mother-child strategy. The mother-child strategy is rooted in a very careful study of the Supreme Court’s abortion jurisprudence. The court has told us pretty clearly what they think about abortion. Going back again to Planned Parenthood v. Casey, they told us that the state has two areas of legitimate interest: one is protecting the health of the woman and two is protecting the life of the fetus that, according to them, may become a child. Anything that we bring before two courts – the court of public opinion and the Supreme Court — must engage both of these elements, both the mother and the child.

We must keep coming back to what we know to be the truth: pro-life is pro-woman.

Yoest paraphrased a saying by G. K. Chesterton —  seemingly the most quoted conservative at the conference — saying that fairy tales are “more than true,” not because they tell us dragons are true, but because they tell us dragons can be beaten. “The culture of death,” she concluded,” is a dragon that must be beaten.” 

Pat Robertson: Gay Marriage Is Still Illegal!

Televangelist Pat Robertson reacted to the Supreme Court’s decision on marriage equality with warnings about bestialityimprisonmenttyrannyfinancial collapse and God’s wrath.

And today, he advised a “The 700 Club” viewer to respond to gay marriage supporters by making the case that the Supreme Court’s Obergefell ruling is only an opinion that can only impact the “couple of people” directly involved in the case. The ruling would only have a wider impact if Congress or state legislatures pass gay marriage bills, Robertson claimed, making the same specious argument made by other Religious Right leaders such as Mike Huckabee.

“In the legal system, party A sues party B over marriage, ‘I want to get married to them,’ and the court says, ‘Okay, you can get married,’” he explained. “That doesn’t mean that I’ve got to get married to homosexuals, it doesn’t mean that you have to nor does it mean that it’s the law of the land. Congress didn’t pass any law. Your state legislature didn’t pass a law. So you’re not under anything, it’s a decision of the court having to do with a couple of people. Now they would like to make it bigger than that but, in terms of the Constitution, it isn’t.”

While Robertson is correct that no one will be forced to “get married to homosexuals,” the Obergefell ruling has struck down bans on same-sex marriage nationwide.

Supreme Court Goes Back to Work and Shows Again Why Election Day Is Judgment Day

This piece originally appeared in The Huffington Post.

The Supreme Court began its 2015-6 Term earlier in October. Even though it issued no decisions, the critical issues it considered and the stark divisions on the Court illustrate why Election Day 2016 will be Judgment Day for the Supreme Court and our rights and liberties, when America determines the president who will select Supreme Court nominees beginning in 2017.

Three cases in which the Court heard oral argument in October are good examples. As Supreme Court analyst Tony Mauro put it, the importance of Federal Energy Regulatory Commission v. Electric Power Supply Association is "hard to overestimate," since it could involve literally billions of dollars in electricity costs and determine whether the nation's power grid collapses in the case of a future blackout.

The question before the Court is the validity of a FERC rule that would have the economic effect of persuading large electricity users to cut back their demands at peak power usage times. Not surprisingly, conservative justices like Scalia and Roberts seemed to be clearly siding with big power companies, based on a narrow view of federal government authority, while moderates like Breyer, Kagan, and Sotomayor appeared to agree with the case for federal authority and the FERC rule.

With Justice Alito recusing himself from the case, the question is whether Justice Kennedy will side with the moderates and uphold the rule or vote with extreme conservatives and vote to affirm a lower court decision striking down the rule. A 4-4 tie would result in the lower court ruling being upheld without a controlling opinion. But if a similar issue arises in a year or so, and if Kennedy, Scalia, or Ginsburg have retired from the Court and are replaced by a nominee selected by the next president, the answer will likely depend on who nominates the new justice.

The Court was similarly divided during oral arguments in October in Montgomery v. Louisiana. That case concerns whether the Court's ruling in 2012, that it is unconstitutional to impose life sentences without possibility of parole on people convicted of murder when they were juveniles, applies to people like 70-year old Henry Montgomery, who was convicted for such a crime long before the Court's ruling and has already spent more than 50 years in prison.

Far right justices Scalia and Alito sounded clearly negative on Montgomery's claim, suggesting that the Court did not even have jurisdiction to hear it, while justices like Kagan and Breyer were far more receptive. As occurred in the 2012 ruling, this case is likely to produce a 5-4 decision with the outcome depending on Justice Kennedy. The fate of a thousand or more people convicted for life while juveniles like Henry Montgomery will hang in the balance.

On its last day of oral arguments in October, the Court heard Campbell-Ewald v. Gomez, one of several cases this Term that concern efforts by business to prevent consumers and others from using class actions to redress corporate wrongdoing. Conservatives on the Court have generally sided with business in such cases and have already severely limited the use of class actions, and Gomez may well be another example.

The issue in the case is whether a business can prevent a consumer like Jose Gomez from bringing a class action to get large amounts of damages and other relief for many injured consumers by offering to give him personally all the damages he can recover as an individual -- in this case, around $1,500 for violating a federal law on unsolicited telemarketing. This would be a good deal for the company, since as many as 100,000 consumers could be included in a class action because of similar violations.

As in previous class action cases, questions from moderates like Justices Kagan and Ginsburg suggested they are likely to agree with the consumer, while those from conservatives like Scalia and Roberts were in the corporation's favor, and Justice Kennedy is likely to be the deciding vote. Regardless of how this case is decided, other cases to be considered by the Court this Term -- as well as in future years -- are likely to have a significant impact on the ability of consumers and others to band together via class actions to obtain meaningful relief for wrongs committed by corporations.

It is always difficult to predict Court decisions and votes based on comments and questions at oral argument, and the Court may not even reach the merits of all the issues presented in these cases. But the importance of the issues at stake -- billions of dollars in electricity costs, the stability of the nation's power grid, the fate of more than a thousand people sentenced to life in prison for crimes committed as juveniles, and the ability of consumers to effectively seek justice for corporate wrongdoing -- demonstrates the importance of the Supreme Court to the rights and interests of all of us. And the close divisions on the Court on these and other issues, coupled with the fact that four will be over 80 in the next president's first term, show the importance of the 2016 election on the future of the Court -- and why November 8, 2016 truly will be Judgment Day.

If you need more convincing, stay tuned as the Court continues its 2015-16 Term -- the last term before the 2016 election.

PFAW Foundation

Little Red Riding Hood And The Big Bad Gay Wolf

Leave it to the folks at the far-right Christian Action League, the American Family Association’s North Carolina affiliate, to come up with an anti-gay twist to the story of Little Red Riding Hood.

In a column for BarbWire today, the group’s executive director, Mark Creech, rewrites the childhood fairy tale into a rather confusing attack on gay rights and the Supreme Court.

Once upon a time there was a dear little girl who loved her grandmother supremely. The grandmother had given to her a little cap of red velvet, which suited her so well she would never wear anything else. Thus, everyone called her Little Red Riding Hood.

For a little while longer the wolf spoke with Little Red Riding Hood, mostly telling her about the way wolves are wrongly perceived by people. “Wolves are nothing to be feared, they just want to be treated like everybody else,” he told her.

While on her way, Little Red Riding Hood pondered, “Yes, I think I can understand how the wolf must feel. Perhaps he is a victim, as he says, and his way is not decadent.”

“Oh grandmother,” she said, “What big ears, eyes, hands, and mouth you have.”

“Certainly you can appreciate diversity,” replied the wolf. And just when he thought the time was right, he sprang from the bed to eat Little Red Riding Hood.

A woodcutter nearby heard her screams and rushed to save her.

He overcame the wolf with his trusty axe. The townspeople hurried to the scene, cheered and supported the woodcutter, except for five foolish judges.

The five foolish judges declared the woodcutter prejudiced, bigoted, and intolerant. They said he had no right to defend either the grandmother or Little Red Riding Hood. They said the axe must be cast away.

Standing with the five foolish judges were also some clever foxes, relatives of the wolf, who argued the wolf’s proclivity for carnage was completely normal. In fact, to suppress the wolf’s appetites, something which was inherent to his nature, would be wrong, they said. Besides, it was claimed that grandmothers are like old traditions that need to give way to the new anyhow.

And so, on the basis of these considerations, not only did the mindset of many of the townspeople start to change, but the wolf was lauded and praised. Many townspeople would fly the wolf flag from atop their village cottages and buildings. An advocacy group called WUVS, standing for “Wolves, Underfed, Voracious, and Famished,” fought to give wolves special protections in law. And no one dared challenge the true nature of the wolf for fear his house, his livelihood, and even his freedom might be taken away.

So the years passed, grandmother was dead and Little Red Riding Hood would live her life in confusion, always in danger of many wolves and never to enjoy the basket of goodies with her grandmother, whom she had known and loved for so long.

I would not do all the work for the reader here, but if it helps, in this fable of Little Red Riding Hood, the Grandmother is traditional marriage. The wolf is homosexual activism. Little Red Riding Hood is an unsuspecting public, and, in another way, children and their future. The basket of assorted goodies signifies the many blessings and joys of real marriage. The woodcutter is true religion’s opposition to so-called gay rights. His axe is state constitutional amendments to define marriage as one man and one woman. The five foolish judges are the U.S. Supreme Court justices who ruled to redefine marriage for the nation. The clever foxes are professionals who argue homosexuality is inherent, fixed, unalterable, and normal. The townspeople represent ever-changing public opinion.

PFAW Telebriefing: The Future of the Supreme Court

On Monday, the first day of the Supreme Court’s new term, People For the American Way hosted a telebriefing for members detailing what’s at stake at the Court over the next year.

PFAW Senior Communications Specialist Layne Amerikaner moderated the call.  Affiliate PFAW Foundation’s Senior Legislative Counsel Paul Gordon, who recently published an extensive Supreme Court term preview, and PFAW Senior Fellow Elliot Mincberg, lead author of the new PFAW report, “Judgment Day 2016: The Future of the Supreme Court as a Critical Issue in the 2016 Presidential Election,” were joined by PFAW Executive Vice President Marge Baker to brief members and answer questions.

Paul kicked off the call by discussing the critical issues on the Court’s docket right now: the rights of working people, equal representation through voting, education opportunities through affirmative action, and more. For example, Paul explained that Friedrichs v. California Teachers Association could “severely weaken the ability of workers to form unions” that negotiate salary, benefits, and more. In Fisher v. University of Texas at Austin, the Supreme Court could make it very difficult to “maintain healthy diversity at colleges and universities.”

As Paul explained, the mere fact that these and some other cases are on the docket is disturbing. These cases have been “ginned up to topple precedents that conservatives don’t like.” Affirmative action, union fair share fees to prevent free-riding, one person one vote for equality of representation: these are principles that the Court decided decades ago. It used to be that conservatives couldn’t muster up four justices to take on cases like these, but now that Justices Roberts and Alito have joined the Court, we’re seeing more and more cases and decisions that challenge fundamental rights.

Elliot detailed the importance of the ideological makeup of the Court: There have been more than 80 5-4 decisions in the Supreme Court since Roberts and Alito joined the Court. Most of these cases have been extremely harmful to our rights, in areas like money and politics, voting rights, and reproductive freedom. Some, though, have protected important rights, as Justice Kennedy has at times been unwilling to join the conservatives on the Court. For example, he voted with the majority in Obergefell v. Hodges to make marriage equality the law of the land. But as Elliot reminded members, there will be four justices in their 80s by the end of the next president’s first term, and another conservative justice would be devastating for issues that PFAW and members care deeply about, such as abortion rights, worker protections, and religious liberty, just to name a few.

Both conservative and progressive groups know that the next president could very well shift the makeup of the Court and thus the outcomes of key cases. Questions from members focused on what to do to take action on this issue. Elliot and Marge encouraged members to discuss with their friends and colleagues the critical impact the 2016 election will have on how pressing issues will be decided for decades to come. They also discussed with members the possibility of attending town halls for presidential candidates, who will nominate the next Supreme Court justices, as well as Senate candidates, who must confirm the justices, in order to ask questions about the types of justices they will support.

Listen to the full briefing here:


Carly Fiorina Falsely Claims She Never Called Obergefell The 'Law Of The Land'

As a number of commentators have pointed out recently, Carly Fiorina’s swift rise in Republican presidential polls has given her an opportunity to display what Mother Jones called her “adventurous relationship to the truth,” which includes deliberately misleading statements on everything from the contents of the Planned Parenthood smear videos to her record as CEO of Hewlett-Packard.

Fiorina displayed her signature truthiness once again in an interview Friday with Iowa conservative radio host Jan Mickelson, who asked her to defend her statement that Supreme Court decisions like Obergefell v. Hodges are “the law of the land,” which he said would turn off voters in Iowa.

Fiorina insisted that she had never said that, speculating, “I think that is a quote from someone else, not from me,” and suggesting that Mickelson might be thinking of her Republican rival John Kasich.

In fact, Fiorina said those very words in an interview with the Iowa conservative blog Caffeinated Thoughts in May when asked about the Supreme Court’s upcoming decision in the marriage equality case.

“I think the Supreme Court decision will become the law of the land, and however much I may agree or disagree with it, I wouldn’t support an amendment to reverse it,” she said. “And I very much hope that we will come to a place now in this nation where we can support their decision and at the same time support people’s right to hold religious views and to protect their right to exercise those views.”

Fiorina told Mickelson that “there is an argument to be made for judicial engagement to rectify when the law begins to impinge on the personal immunities and privileges of citizens,” but seemed to imply that the denial of marriage rights was not such a case. Grasping onto the Right’s argument that LGBT equality undermines religious freedom, she called for the passage of state Religious Freedom Restoration Act laws similar to a controversial one passed and later amended in Indiana, which would have opened the door for anti-LGBT discrimination. She also called for the passage of such a law at “the federal level” — there is already a federal Religious Freedom Restoration Act, so presumably Fiorina supports one that would expand the ability of people to discriminate against LGBT people.

Fiorina also promised that if she were to become president, she would “appoint the right justices” and “spend a lot of time” with potential nominees “to see how well they hold up to pressure, because people look like they’re one thing and then become another thing when they can’t take pressure.”

When Mickelson suggested that Sen. Ted Cruz might fit the bill for a Fiorina Supreme Court, Fiorina laughed: “Well, wouldn’t that be an interesting selection. He clearly can stand up to pressure.”

UPDATE: Fiorina appeared again on Mickelson’s program on Monday, where he confronted her a clip of her “law of the land” comments. Fiorina evaded the question, telling Mickelson that she had “no idea what reference that snippet was from,” but that if it was “about gay marriage” she was saying that “we profoundly disagree with this” and will focus on finding Supreme Court nominees who will overturn it.

What I said, for example, was we need to be, if that was about gay marriage, we profoundly disagree with this, we need to invest our political capital and our leadership now in protecting religious liberty all across this nation, which means every state needs to enact a religious freedom protection act, as we have a national act. And it also reminds us how important it is who’s on the Supreme Court. So, let’s focus our energies on making sure we have the right nominees and the right protections and liberties.

Citizens United and the Court: How the Supreme Court Created Our Current Money in Politics System, and How it Can Fix It

Big money in politics has become an existential threat to our democracy. So how did we get here?

Short answer: The Supreme Court.


Citizens United v. FEC is one of several Supreme Court decisions that have opened the floodgates for unlimited big money in our elections and are now preventing even the most common-sense campaign finance regulations. 

The judicial philosophy that has enabled these decisions is one that is hostile to democratic principles and disproportionately favorable to the rich and powerful. That philosophy is currently held by a slim five-justice majority on the Roberts Court.

A different Court majority, one acknowledging the disastrous errors in the reasoning behind Citizens United and related cases, could eventually overturn those decisions.  However, that couldn’t happen overnight.

Citizens United itself undermined a century of established law allowing for certain limits on campaign spending, but that decision and even more recent ones, like McCutcheon v. FEC and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, have now established their own precedents that could take several cases and many years to overturn fully.

While a more democracy-friendly Supreme Court majority is essential for so many reasons, the long and daunting road to a Court decision overturning Citizens United shows the persisting need to pursue permanent constitutional remedies, driven by a popular national movement and legislation to pass and ratify a 28th constitutional amendment. 

Edit Memo: The Supreme Court's 2015-2016 Term Preview

This Supreme Court term may be yet another one where the American people enjoy less liberty, less equality, less power, and less control over our own democracy on the last day of the term than we had on the first.

Why November 8, 2016 is Judgment Day for the Supreme Court -- and Our Rights

This post originally appeared in the Huffington Post.

What would have happened if a President McCain had appointed conservatives to the Supreme Court, instead of Justices Sotomayor and Kagan, before the Court ruled on marriage equality in the Obergefell case? And what if a President Kerry had filled the seats that Chief Justice Roberts and Justice Alito took before the Court decided theCitizens United campaign finance case? Clearly both those rulings would have come out very differently, with enormous consequences for all Americans. As we approach the tenth anniversary of the Roberts-Alito Court and as the 2016 elections get more and more attention, these examples and many more should alert us that Election Day 2016 is truly judgment day for the Supreme Court and for Americans’ rights and liberties. 

Today, People For the American Way released a comprehensive report, Judgment Day 2016, which looks at pivotal Court decisions since Roberts and Alito joined the Court that were decided by a single vote. Many have seriously harmed the rights of ordinary Americans and promoted the interests of powerful corporations. Examples include Citizens United, the ruling striking down a key part of the Voting Rights Act inShelby County v. Holder, the decision allowing corporations to claim religion and  deny contraceptive coverage to women in Burwell v. Hobby Lobby Stores, and the holding reinterpreting the Second Amendment and severely limiting efforts to limit gun violence in District of Columbia v. Heller. All these and many other decisions could be overruled or limited if a progressive justice replaces just one conservative on the Court, significantly blunting the right-wing judicial assault on a broad array of our rights and liberties.

But there have also been many critical 5-4 decisions over the past ten years where the Court’s  moderate justices, usually joined by Justice Kennedy, have succeeded in protecting Americans’  rights and liberties. In addition to Obergefell, which found a constitutional right to marriage equality, examples include Massachusetts v. EPA, where the Court upheld EPA authority to regulate greenhouse gases; Alabama Democratic Conference v. Alabama, which invalidated a state redistricting scheme that used race to harm minority voters; and Boumediene v. Bush, which narrowly ruled that prisoners detained at Guantanamo can challenge their detention through habeas corpus petitions. All these and many other rulings could be overturned or limited if a right-wing justice replaces just one of the moderates on the Court. A Supreme Court with a far-right supermajority would put more and more of our rights at risk.

Why is this particularly important now? During the first term of whoever is elected President in 2016, four Supreme Court justices - including extreme conservative Antonin Scalia, conservative swing vote Anthony Kennedy, and moderates Ruth Bader Ginsburg and Stephen Breyer - will be over 80 years old. Given that the average retirement age for justices since 1971 is 78, the odds are overwhelming that the President elected next year will be able to nominate one or more justices who could produce a critical shift in the Court’s ideological balance.

Leading presidential candidates from both parties have already recognized the importance of future Supreme Court appointments and made clear their intent to nominate justices in accord with their views on crucial constitutional issues. In criticizing the Court’s recent 5-4 decision in Obergefell striking down discriminatory marriage bans, for example, Republican candidates Jeb Bush and Marco Rubio pledged to appoint to the Court “people with a proven record of judicial restraint” and “justices committed to applying the Constitution as written and originally understood,” in the hope of undermining or reversing the Court’s decision. On the other hand, in criticizing the Court’s 5-4 decisions striking down federal campaign finance law in Citizens United and part of the Voting Rights Act in Shelby County, Hillary Clinton pledged to “do everything I can to appoint Supreme Court justices who protect the right to vote and do not protect the right of billionaires to buy elections.”

PFAW’s report carefully reviews 5-4 decisions in eleven key areas where the next President and Supreme Court justice could make such a crucial difference to all Americans. These include money in politics; civil and voting rights (including immigration); LGBT rights; reproductive freedom and women’s rights; workplace fairness; protecting the environment; religious liberty; gun violence; marketplace and consumer fairness; access to justice; and protection against government abuse. In addition to past 5-4 rulings in these areas that could be limited or overruled, the Court is quite likely to be deciding cases on these and other key subjects in the years to come.

 Conservatives clearly understand the crucial importance of the Court and the next election in all these areas, with one far right activist noting that “we cannot overstate the importance of the Supreme Court in the next election.” In fact, her group - the Judicial Crisis Network - recently launched an ad campaign criticizing Chief Justice Roberts and Justice Kennedy as not conservative enough,  and demanding that Republican candidates pledge to appoint even more conservative justices. The group noted that Court decisions affect “every aspect of our lives today” and that “the next President could appoint a new majority to last a generation.” Hopefully, statements like that will help all Americans to pay close attention to the Supreme Court in the 2016 election and to recognize that November 8, 2016 truly is judgment day.

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