Yesterday, PFAW Foundation Senior Fellow Jamie Raskin previewed his upcoming report, The Supreme Court in the Citizens United Era, during a member telebriefing. Executive Vice President Marge Baker and Senior Legislative Counsel Paul Gordon also joined the call to answer questions from members and discuss PFAW efforts to promote fair and just courts. Drew Courtney, Director of Communications for PFAW, moderated.
To kick off the call, Raskin reviewed another period during which the Court granted unprecedented constitutional rights to corporations. Lochner v. NY, Raskin explained, began an era in which government at every level was prevented from interfering with corporate contracts—and thereby prevented from passing sensible health and safety regulations.
Today, said Raskin, we’re in an analogous period, with the Supreme Court now using the First Amendment as an excuse for expanding or inventing the political and religious rights of corporations. This time, it’s beyond what we’ve ever seen before; the Citizens United and the Hobby Lobby cases both demonstrate how the Court is putting the interests of corporations over the rights of people and making it more difficult to hold corporations accountable for their actions. Other cases allow corporations to insulate themselves through a host of legal immunities while at the same time, they’re able to spend unlimited amounts of money influencing who gets elected to office.
In responding to a question from a PFAW member, Baker outlined the two key ways to fight the Court’s trend of empowering corporations over people: Elect Presidents who will nominate, and Senators who will confirm, Justices who share the ideology that corporations shouldn’t be favored in their legal rights over people; and amend the Constitution, which PFAW and other groups are working on now. She also directed PFAW members to www.united4thepeople.org and www.getmoneyoutaction.org to get more involved in these issues.
You can listen to the full telebriefing here:
On yesterday’s edition of “Focal Point,” Eagle Forum founder Phyllis Schlafly told host Bryan Fischer that state governors should simply “refuse to enforce” a Supreme Court decision striking down bans on same-sex marriage.
She also urged President Obama or whoever replaces him to direct the Attorney General to defy the court, just as the federal government should have ignored the Dred Scot ruling before the Civil War.
“We just cannot live in a country where one judge or even five judges are able to change the law of our land that goes against the laws of most of our states and we’ve had for several thousands of years about the definition of marriage, that is simply not our form of government,” Schlafly said. “We believe in ‘We The People.’”
Schlafly said that people need to “speak up and say we’re not going to put up with it” and defy judges who “think they’re God or something.” She also encouraged governors to order officials who issue marriage licenses to disobey the court’s decision.
The American Family Association placed a full-page advertisement in today’s edition of the Washington Post, in which the group warns the Supreme Court not to “bend what God designed merely to suit the desires of man, knowing that you do so at the expense of children, perhaps even civilization itself.”
The AFA’s Fred Jackson, who was guest-hosting “Sandy Rios In The Morning,” hailed the ad’s “forceful message” to the court and claimed that gay marriage undermines what God established in the Garden of Eden about 6,000 years ago.
“So for at least 6,000 years, people have understood marriage as between a man and a woman and it is only fairly recent history and certainly in this country have the forces of evil attempted to change all of that,” Jackson said. “It is absolutely amazing — one of the saddest facts is how many denominations, church denominations in this country, have succumbed to this pressure.”
Texas pastor Rick Scarborough took to WorldNetDaily today to expound on his call for anti-gay civil disobedience if the Supreme Court strikes down bans on same-sex marriage, warning that such a ruling will usher in attacks on Christianity and “a brave new world with tyrannical laws and regulations.”
Insisting that the Supreme Court will “silence” Christians and the “thousands of ‘former homosexuals,’” Scarborough compared a potential marriage equality ruling to Dred Scott and Buck v. Bell.
“Now the high court is threatening to unleash the spirit of hell on the nation, if they deny what nature clearly teaches on this subject of gender and marriage,” Scarborough said. “The time has come for pastors and leaders to stand up and declare what innately we all know to be true – that this idea is morally unacceptable and we will not allow it proceed without our objection. There can be no compromise on this issue.”
With all due respect, I must refuse to honor any ordinance or judicial ruling that makes restricting marriage to a union between one man and one woman, which God ordained and our nation throughout our history protected, invalid. Regardless of the consequences.
It is the duty of all Christ’s followers to lovingly uphold a standard of righteousness and be true to God’s Word, which never changes. God’s Word provides an offer of hope and forgiveness through Jesus to anyone who is caught up in sin, but if we compromise His Word, on what authority can we offer His hope?
Homosexuality is a sin – but it is not an unforgivable sin nor worse than any other sin. Though some who have chosen homosexuality may choose to reject me for saying this, I am willing to suffer such if that is the cost of being true to God’s Word. If Christians quietly allow marriage to be redefined, we will find ourselves being forced to be quiet as judges impose the acceptance of more and more aberrant behaviors.
We will soon find ourselves in a brave new world with tyrannical laws and regulations forcing us not only to accommodate same-sex marriage but to keep our message of love and forgiveness to ourselves, lest our message cause some to be offended. Paul spoke clearly about such a time as this: “Professing themselves to be wise, they became fools.”
Those who are advancing this agenda want Christians to be silenced, thinking that to be a good thing. But if they succeed, they will cut off the very Gospel that can change their lives and provide hope and forgiveness, not only for sexual sin, but for all sin.
There are thousands of “former homosexuals” who can testify that Jesus has the power to set us free from any sin. Traditional marriage doesn’t discriminate. There are many former homosexuals now rearing their children in such marriages, and they are living proof of God’s forgiveness and matchless love.
That alone is reason enough for Christians to defend marriage as God designed it.
We must be reminded that the courts are not the final word on this subject. The Supreme Court has gotten it wrong more than they want to admit. More than 200 previous decisions of the Supreme Court have either been rescinded or overturned. Some of those past rulings have been infamous for wrongheadedness, like Dred Scott v. Sandford or Buck v. Bell.
Now the high court is threatening to unleash the spirit of hell on the nation, if they deny what nature clearly teaches on this subject of gender and marriage. The time has come for pastors and leaders to stand up and declare what innately we all know to be true – that this idea is morally unacceptable and we will not allow it proceed without our objection. There can be no compromise on this issue.
We are witnessing a culture March toward Madness!
Family Research Council Tony Perkins let loose with a rant about how President Obama isn’t a real Christian on his “Washington Watch” radio show Friday to once again claim that a Supreme Court decision on gay marriage could lead to a full-blown revolution and “literally split this nation in two.”
It all started when a caller, John, told Perkins about a discredited conspiracy theory that Egyptian investigators had uncovered evidence that proves President Obama is a member of the Muslim Brotherhood. He said that Obama “is a pure Muslim” who “doesn’t want any Christianity [sic] to be uprising here like the Muslims are,” adding that Obama was trained by his father “how to be a devil and a Muslim and how to hate the white people and how to hate Christianity and how to hate others.”
Perkins responded by claiming that while he can’t say for sure whether Obama is “a follower of Allah,” he knows that Obama is “deferential toward Islam and has been hostile to orthodox Christianity.” He also cited bizarre comments by Franklin Graham about Obama’s family.
He eventually focused on the caller’s comments about the need for a Christian “uprising,” which he said could be triggered by a Supreme Court ruling in favor of marriage equality: “I think, John, your point about Christians rising up, I think we are getting close to that in this country as we see increasingly this growing hostility at the hands of our own government toward Christianity and I think especially if the court imposes upon the nation a redefinition of marriage. I don’t think the nation is going to accept it, I absolutely don’t, and the conflict that is going to come as a result of it.”
Interestingly, one poll taken last year found barely any support for Perkins’s call for a revolution.
Later in the program, Perkins said that the FRC will be leading an effort, starting on “the Monday after Easter, [of] twenty-one days of prayer and fasting for our nation, that leads right up to the Supreme Court’s oral arguments on the marriage cases, and we need to first be praying, we need to repent as a nation, but then we’ve got to get up out of our prayer closet and put feet to our prayers and be involved.”
In a BarbWire column today, “Why A Bad Supreme Court Decision May Require Civil Disobedience,” Staver outlined his goal of bringing together “many thousands of individuals, agencies, charities, churches and schools” to “peacefully refuse to countenance a Supreme Court decision that violates not only our highest legal document, but the laws of Nature and Nature’s God.”
Staver claimed that such anti-gay activists would be following in the footsteps of Martin Luther King Jr. and Europeans who shielded Jews from the Nazi regime, adding that “perhaps we would see our culture step back from the brink of insanity, or perhaps we would suffer in the face of injustice.”
Civil disobedience has a long and noble history in Western culture, and we will need a primer on it if, as seems likely, the Supreme Court rules against natural marriage in June.
Of course, civil disobedience is not justified just because we disagree with a human law, but only when that law conflicts with a higher revealed or Natural Law. When he was jailed for violating a law used to stop him from protesting injustice, Dr. Martin Luther King, Jr., wrote his famous Letter from Birmingham Jail. “A just law is a man-made code that squares with the moral law or the law of God,” he argued. “An unjust law is a code that is out of harmony with the moral law.”
He went on to say: “I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that ‘an unjust law is no law at all.’”
Merely because a legislature or a judge passes a law or issues an opinion does not make a law just. “To consider the judges as the ultimate arbiters of all constitutional questions [is] a dangerous doctrine indeed,” wrote Thomas Jefferson, “and one which would place us under the despotism of an oligarchy.” To cite an extreme example, if you lived under the Nazi regime and the law required you to not hide or aid a Jew in any way, would you comply with Hitler or obey God? To obey Hitler, you would have to disobey God.
The U.S. Supreme Court could still come off the rails in their June decision and invent a newfound right to “same-sex marriage,” striking down state laws that recognize the reality of marriage. If the Court takes that disastrous step, we should view it the same way history views the Dred Scott and Buck v. Bell decisions. Such a decision would fly in the face, not just of the Constitution itself, but of the natural created order.
The temptation for many will be to cave or compromise. The temptation even for the faithful will be to retreat into our churches and cloisters. In 2004, same-sex “marriage” came to Massachusetts. Contrary to the claim that such laws would usher in an age of “tolerance,” the law immediately became a legal club to beat unwilling participants. Catholic charities bravely refused to place orphans in same-sex homes, because it was contrary to their mission.
Unfortunately, they stopped doing adoptions in the state. This cannot be our precedent. What they should have done is to say, “We are called to place orphans in homes with moms and dads. We will not voluntarily surrender our calling.” Massachusetts might have used force to stop Catholic charities anyway, just as lone florists and bakers are being driven to bankruptcy in other states. But what would happen if, instead of quiet retreat, many thousands of individuals, agencies, charities, churches and schools all came together, prepared, prayed and peacefully refused to countenance a Supreme Court decision that violates not only our highest legal document, but the laws of Nature and Nature’s God?
Perhaps we would see our culture step back from the brink of insanity, or perhaps we would suffer in the face of injustice. Whatever the outcome, the hour is late. It’s past time for us to get ready.
On Wednesday, Tony Perkins of the Family Research Council blasted the New England Patriots for signing a Supreme Court amicus brief in favor of marriage equality, alleging that “the Patriots didn’t exactly live up to their name” with the team’s endorsement of equal marriage rights.
“The New England Patriots didn't just deflate footballs — they’ve deflated Americans’ respect in professional sports,” Perkins said in his radio commentary this week.
The New England Patriots didn't just deflate footballs — they've deflated Americans' respect in professional sports. Hi, I'm Tony Perkins with the Family Research Council in Washington. A month after winning the Super Bowl, the New England Patriots are stepping onto another turf: the marriage debate. This month, the Patriots didn't exactly live up to their name when they joined baseball's Tampa Bay Rays and San Francisco Giants in asking the Supreme Court to overturn the votes of millions of Americans who voted to uphold natural marriage. They argue that state laws protecting marriage "hamper employer efforts to recruit and retain the most talented workforce possible in these states." But if the latest polling is any indication, Americans aren't exactly fans of these teams' agenda. Now that people are starting to see the fallout of same-sex marriage, Rasmussen is finding that more people actually oppose same-sex marriage than support — 44% to 42%. So if the Patriots are trying to move the goal post on marriage, they might want to change their game plan.
Anti-gay pastor Rick Scarborough, notorious for insisting that HIV/AIDS is God’s punishment for homosexuality, is working with Religious Right leader James Dobson, televangelist James Robison and conservative legal activist Mat Staver to recruit leading Religious Right activists and politicians to sign a pledge to commit civil disobedience in protest of a potential Supreme Court decision legalizing same-sex marriage.
Scarborough told WorldNetDaily in an interview yesterday that once gay marriage becomes the law of the land, there will be mass arrests of Christians, even though such an event has never taken place in the dozens of states where gay marriage is legal. The government “better have a lot of prisons and jails,” Scarborough said, if they dare to legalize same-sex marriage.
He added that members of Congress “are lining up to sign the document” pledging to go to jail rather than recognize a Supreme Court ruling on gay marriage.
Back in 2009, Scarborough similarly warned that Christians would be hauled off to jail after a gay-inclusive federal hate crimes law was signed into law, which obviously didn’t happen.
A team of prominent Christian leaders is preparing a statement that will inform the public – including justices on the U.S. Supreme Court – that they will engage in civil disobedience rather than follow a ruling that establishes homosexual “marriage” in the United States.
Among those leading the charge is James Dobson of Family Talk Radio, Rick Scarborough of Vision America Action, Mat Staver of Liberty Counsel and James Robison of Life Today, whose brand new publication called The Stream reported on a recent telephone conference call discussing the issue.
Stream Executive Editor Jay Richards told WND there were about 20 other Christian leaders on the call. He said members of Congress have expressed an interest in the plan, which will be disclosed in the next few days in a statement regarding marriage and the U.S. Supreme Court.
However, Scarborough wasted no time in an interview with WND explaining what is, and is not, going to happen.
“We’re taking a very adamant stand,” he said. “If the court declares same-sex ‘marriage’ to be on the same par as a civil right, that’s a bridge too far. We won’t obey. We’ll go to jail.”
Scarborough confirmed congressmen “are lining up to sign the document.”
“The undeniable case is that when same-sex “marriage’ becomes, declared by the Supreme Court, as the law of the land, they will begin to enforce it, like all civil rights laws.”
That is where the civil disobedience will loom large.
“We’re saying, before that, we will never obey that tyrannical law. It’s counter to natural law, and God’s higher law.
“We will simply refuse to comply with recognizing same-sex ‘marriage’ as legitimate,” he said. “The Supreme Court does not have the inherent right [to make that change]. We’ll going to continue doing what we’ve always done.”
He said the hope is that thousands of churches and millions of Americans will join.
Those who plan to use the power of federal law enforcement to enforce same-sex marriage, he said, “better have a lot of prisons and jails.”
Note: This article first appeared at Huffington Post.
In April, the U.S. Supreme Court will hear arguments on the constitutionality of state laws that ban same-sex couples from getting married. The historic case has attracted a wide array of amicus briefs; People For the American Way Foundation joined religious and civil rights groups on a brief urging the Court to reject discriminatory marriage bans and challenging “religious liberty” arguments opposing marriage equality.
One fascinating brief was filed by the Mattachine Society of Washington, D.C. The original group by that name was led by Frank Kameny, an astronomer who was fired from his federal job for being gay and led some of the earliest gay-rights protests in the nation’s capital in the 1960s. The name and legacy have been revived by local activists Charles Francis and Pate Felts for the purpose of documenting decades of systematic anti-gay discrimination by the federal government. In partnership with pro bono attorneys from the firm of McDermott Will & Emery, the new Mattachine Society of Washington, D.C. is engaged in strategic “archive activism.” They are using the Freedom of Information Act to unearth a “culture of animus” that permeated the U.S. Civil Service Commission – now known as the Office of Personnel Management – and to bring to public light previously closed records about investigations challenging workers’ “loyalty” and “suitability.”
“The investigation and firing of gay and lesbian federal employees was like shooting fish in a barrel for the General Counsels and legal staff of the Civil Service Commission,” says Francis. “The animus, almost sports-like in their writings, is documented in decades of legal advisory files we discovered this year at the National Archives.”
Among the historical tidbits unearthed by the project: Nancy Reagan turning down a plea from a dying Rock Hudson for help getting into another hospital; and anti-gay activist Gary Bauer’s no-holds-barred, but ultimately unsuccessful, effort to keep the White House from including a gay person on the nation’s first AIDS commission.
The Mattachine Society’s project is about preserving the historical record, but it also has an important legal purpose, which is demonstrating that anti-equality laws and regulations have long been grounded in hostility, or animus, that is not a permissible justification for discrimination. Chief Justice John Roberts’ dissent from the Supreme Court decision in Windsor, which overturned the Defense of Marriage Act, demonstrates the importance of this archival work. Roberts suggested there is insufficient evidence – he waved it away as “snippets of legislative history” – to demonstrate that DOMA’s purpose was to “codify malice.” Added Roberts, “I would not tar the political branches with the brush of bigotry.”
There’s no escaping the brush of bigotry, the reeking stench of bigotry, exposed by the Mattachine Society’s brief, which links to more than 35 historical documents that demonstrate the ways that the Civil Service Commission, often in partnership with J. Edgar Hoover’s FBI and other law enforcement agencies, investigated people suspected of sexual “perversion” and robbed them of their federal jobs and careers.
From the amicus:
For decades, this animus was one of the basic assumptions of American life. It was so persistent, so prevalent, and so instrumental to the way that we structured our institutions, treated our fellow citizens, and organized our lives that, in retrospect, it is often overlooked….
For decades, both federal and state governments targeted and persecuted homosexuals, individuals suspected of being homosexual, and even those believed to have engaged in homosexual acts, regardless of actual sexual orientation. The stated rationale shifted over time—from concerns about national security to code words, such as “suitability”—but the point was always the same: government officials, federal and state, high and low, felt a complete revulsion toward homosexuals and wanted to purge the country of even the hint of homosexuality.
Animus, therefore, was a culture. And with that culture came a language. For decades, government officials referred to homosexuality in official, often highly confidential or privileged communications, as “unnatural,” “uniquely nasty,” “immoral,” “deviant,” “pervert[ed],” and an “abomination.” Even the FBI had a term for the program that it designed to rid the government of homosexuals—the “Sex Deviate Program.” Once it attached, whether based in fact or mere speculation, the label of homosexuality remained forever fixed. As one senior executive official wrote, “once a homo, always a homo.” And, as one state legislature put it, what homosexuals wanted was “recognition.” And “recognition” was something to fear….
The effort to purge “sex deviates” began well before President Dwight Eisenhower’s 1953 Executive Order 10450, but that action explicitly made “sexual perversion” a disqualification from federal employment. Congress was in on the act as well. The Mattachine amicus quotes from a 1950 document from the US Senate Subcommittee of the Committee on Expenditures in the Executive Department:
There is no place in the United States Government for persons who violate the laws or the accepted standards of morality, or who otherwise bring disrepute to the Federal service by infamous or scandalous personal conduct . . . . It is the opinion of this subcommittee that those who engage in acts of homosexuality and other perverted sex activities are unsuitable for employment in the Federal Government.
The federal government also worked in concert with anti-gay activities being carried out at the state level. One of the documents uncovered by Mattachine’s Freedom of Information Act requests is a 1963 note from Civil Service Commission General Counsel L. V. Meloy to Charley Johns, chairman of the Florida Legislative Investigation Committee on Homosexuality and Citizenship.
The infamous Johns Report wallowed in salacious descriptions of “the special world of homosexuality” and warned of “aggressive homosexuals” seeking recognition and legal equality. The report described teachers engaging in sex in public bathrooms and little league coaches seducing teenagers, asserting, “The plain fact of the matter is that a great many homosexuals have an insatiable appetite for sexual activities and find special gratification in the recruitment to their ranks of youth.” The report included a glossary of “sex offenses” that were illegal under Florida law and eight pages of homosexual slang and “deviate acts.”
Meloy’s letter asking for “several copies” of the report said that the “Federal Government has related problems in this area and … [the] investigation will shed additional light on a most difficult problem in suitability for government employment.” The Florida committee specifically targeted gay teachers but also resulted, according to the Mattachine amicus, in the removal of at least 37 federal employees.
The brief also documents that the Civil Service Commission shifted its strategies in response to court rulings challenging its policies. The brief goes into some depth documenting the case of William Dew, an African American Air Force veteran. Dew was married with a pregnant wife when he was fired from his job as an air traffic controller in 1958 for having admitted years earlier as part of a job application to the CIA that he had experimented with gay sex when he was in college. After a six-year legal battle, culminating in the Supreme Court agreeing to hear Dew’s appeal, the government settled with him. But rather than loosening the CSC’s anti-gay policies, the government strengthened its resolve in the wake of the Dew settlement and, in the words of the Mattachine amicus, “demonstrated its willingness to use all of its resources to crush homosexuals and those who engaged in homosexual acts with its suitability standards.”
Following a 1969 DC Circuit Court ruling that challenged the firing of federal workers for something that had nothing to do with the performance of their jobs, the CSC General Counsel at that time, Anthony Mondello, argued that federal agencies would have a hard time attracting quality workers if applicants knew they might have to work with “people who repeatedly engaged in serious misconduct offensive to community standards.”
The CSC and its successor, the Office of Personnel Management, continued to target gay federal employees throughout the 1960s and 1970s and into the 1980s.
The Mattachine Society brief ends with an appeal to the Court’s history of addressing anti-gay animus:
The Dew case is important for another reason as well—one that goes to the heart of the cases now before this Court. For decades, there was no limit to the animus meted out against LGBT Americans and no end to its reach. It poisoned every institution in the United States and seeped into the lives of all Americans, not merely those of gays and lesbians. So too, the language of animus became commonplace among those in the highest positions in government: “homo,” “sexual deviant,” “pervert,” “abomination,” “uniquely nasty,” and other derogatory terms and phrases were used with bureaucratic ease as a way to define, cabin, and limit the citizenship of LGBT Americans. As the Dew case perfectly illustrates, the animus even extended to those who were not gay.
It was the courts—and in the case of Dew, this Court—that ultimately stepped in to set the course right. This Court knows animus when it sees it, and it has a well-established line of cases overturning laws that by their text, background history, and effect, relegate a class of citizens to second-class status. See, e.g., Romer v. Evans, 517 U.S. 620 (1996); Lawrence v. Texas, 539 U.S. 558 (2003); and United States v. Windsor, 133 S. Ct. 2675 (2013). Indeed, this Court has already recognized the long history of discrimination and animus against homosexuals. See, e.g., Lawrence, 539 U.S. at 571.
The newly revealed documents cited herein merely reinforce what this Court already knows. For decades, there was a culture of animus against LGBT Americans that permeated every aspect of American life and every American institution. In many places, that culture continues to this day. To say that the marriage bans now at issue are not somehow the product of this historical animus is to ignore reality. We may not see the air that feeds the flame. But, for decades, animus against LGBT Americans fed the flames of hatred, revulsion, and disgust from which the current marriage bans arose.
The Mattachine Society of Washington, D.C. is optimistic about the impact of its brief. “The government attorneys who administered the federal ban on homosexuals have met their match in our pro bono counsel McDermott, Will & Emery’s powerful amicus brief," says Francis, "The McDermott brief is a lasting account of an unconstitutional ‘culture of animus’ embedded through seven Presidencies.”
In a radio interview this weekend, Liberty Counsel’s Mat Staver called on states to defy a Supreme Court ruling on marriage equality if it goes “the wrong way.”
“What we could have is the Supreme Court issuing its decision on marriage the wrong way, and Alabama saying, ‘Goodbye, get out of my state, that’s not what’s going to happen to my state,’” Staver told anti-LGBT pundit Linda Harvey, adding that he hopes Texas will also flout such a decision.
The Religious Right legal activist went on to insist that California’s Proposition 8, the gay marriage ban that was struck down by the federal courts, “still is applicable” in most of the state. “They have no legal authority to issue those same-sex marriage licenses,” he claimed.
Staver said that people should prepare to commit civil disobedience if same-sex marriage becomes legal, pointing to the example of a North Carolina magistrate who is refusing to issue marriage licenses to same-sex couples and offering an extremely twisted account of a controversy involving Catholic Charities in Massachusetts.
“Go back to the days of Martin Luther King Jr., go back to the days of the American Revolution,” Staver said. “I think it’s that serious.”
This op-ed was originally published at The Huffington Post.
Some Supreme Court cases are really tough ones, with important, difficult, and complex legal questions about constitutional meaning or statutory interpretation, where justices have to choose between two powerful and compelling arguments. Sometimes the court is called upon to resolve an issue that has divided the circuit courts. Other times there is a lower court ruling so at odds with logic or precedent that it needs to be reviewed and corrected.
And then there's King v. Burwell, the Affordable Care Act subsidies case being argued this week.
Those challenging the law have an extremely weak legal case, there is no split in the lower courts, and there is no clearly wrong lower court ruling that needs to be corrected. This is a meritless case that was ginned up by conservatives seeking to enlist the Supreme Court in their political efforts to destroy the ACA. That at least four justices voted to hear the case is ominous enough. But a victory for the challengers would make it more clear than ever that political considerations are infecting a majority of the court.
Some background: Section 1311 of the ACA directs states to establish health insurance exchanges, creating competitive markets in every state for people to buy affordable insurance no matter where they live. But Congress also recognized that states might choose not do this, so Section 1321 says that in those cases the federal government should set up the exchange instead. The purpose of doing this was to ensure that even if states declined to set up an exchange pursuant to Section 1311, fully functional stand-ins would exist. This is essential to the structure of the law: The financial model relies on competitive markets with affordable insurance being available in every state.
To ensure affordability, the law also establishes subsidies for people below a certain income level to make sure they can buy insurance, which is necessary for the entire structure of the ACA to work. One subsection of the law establishes some key definitions, including an "eligible taxpayer" who is entitled to these subsidies, and the main criterion is income level. Try as you might, you won't find anything there saying that eligibility is at all tied to where someone lives.
A separate subsection says how to calculate the amount of the subsidy. Bizarrely, the conservative opponents of the ACA say that it is here that Congress chose to establish an enormously important additional eligibility criterion that, for some reason, they didn't put in the eligibility section: You have to live in a state that has set up its own exchange, rather than in one where the state has allowed the federal government to set it up instead.
This strange interpretation of the ACA depends on a deliberate misunderstanding of the subsidy provision's stating that the amount is based on the monthly premiums for a policy purchased through an exchange "established by the state under [section] 1311" of the ACA. But to interpret this provision the way the anti-Obamacare activists do, we'd have to deliberately blind ourselves to how it clearly fits with the ACA as a whole.
So we're supposed to pretend that Congress didn't specifically empower the federal government to set up fully functional stand-ins for state exchanges in states that declined to create them. And we're supposed to think that Congress hid a critically important criterion for subsidy eligibility in a section on calculating the subsidy amount. And we're supposed to accept that Congress intended to undercut the financial viability of the law and thwart its central purpose of providing affordable health care to all. As D.C. Circuit Judge Harry Edwards wrote, "[i]t is inconceivable that Congress intended to give States the power to cause the ACA to crumble."
No one could possibly believe that. You can't possibly look at the text of the Affordable Care Act and interpret it in the way that its enemies have conjured up.
And as journalists like Glenn Kessler have pointed out, congressional Republicans who today insist that Congress intended for subsidy eligibility to depend on what state you live in were saying nothing of the sort when the law was being debated. Their statements at the time show they assumed subsidies would be available nationwide.
It is also clear that state legislators -- regardless of party -- deciding whether to set up their own exchanges never contemplated the possibility that choosing to let the federal government do it would deny much-needed subsidies to people in their state. In fact, that point is made quite effectively in an amicus brief authored by the Constitutional Accountability Center on behalf of members of Congress and state legislatures.
When this nonsensical lawsuit was heard at the Fourth Circuit, it was rejected by a unanimous panel of judges. In his concurring opinion, Judge Andre Davis wrote:
What [the ACA opponents] may not do is rely on our help to deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear.
Yet when the ACA opponents appealed to the Supreme Court, at least four justices (the minimum required to grant certiorari) agreed to hear the case.
It would be nice to believe that the only reason was to issue a 9-0 ruling slapping down this lawsuit and condemning those who would abuse the court system by seeking to enlist federal judges in their political fights. Unfortunately, this is the Roberts court, a court with a history of bending the rules, twisting the law, and doing whatever it takes to get to an outcome beneficial to conservative and corporate interests. With cases like Citizens United, Hobby Lobby, Ledbetter, Shelby County, and so many others, a narrow 5-4 majority has made opponents of the Affordable Care Act think they could gin up a meritless case and carry the day.
If the Roberts Court chooses to sabotage millions of Americans' access to health care, the consequences will be catastrophic for many everyday people, and possibly fatal to some. While there may be Americans who weren't paying attention to some of the wrongly decided cases noted above, it is hard to imagine any American missing this one -- and not knowing exactly who to blame.
A coalition of far-right groups, including Faith 2 Action, Americans For Truth About Homosexuality, BarbWire, Vision America Action and the Judicial Action Group, wants Congress to order the Supreme Court and other federal courts to “cease and desist” from ruling on same-sex marriage cases.
In a letter to Congress, which it dubs a “Restraining Order,” the coalition claims that the “judicial usurpation” on marriage “fueled a government assault on Constitutionally protected First Amendment rights of pastors, churches, business and facility owners, employees, public officials, organizations, ministries and citizens.”
Of course, the coalition is asking for as much as $49.95 to send the letters to members of Congress.
In an interview in January, Liberty Counsel’s Mat Staver warned that the Supreme Court could “change Western Civilization” if it “goes the wrong way” and strikes down bans on same-sex marriage.
Marriage equality, he said on the conservative radio show “Point of View,” might even lure children into homosexuality.
“It also changes everything in the school when they begin to learn not just about same-sex relationships, but about same-sex activities,” Staver said. “They ultimately get encouraged to pursue this kind of lifestyle. They have gender confusion when young boys naturally are gravitating towards one another and young girls towards one another, if you now inject the same-sex sexual activity into the school curriculum, it will suggest to them and ultimately push them on a road of experimentation where they might engaged in same-sex activity.”
Staver also saw the bright side of a gay marriage victory, claiming that the effects of legal same-sex marriage will be so devastating that “we could see the greatest revival of our country and the church standing up being the church.”
If not, Staver warned, “we’re going to see persecution.”
“This is going to be the Civil Rights Movement of the 1960s for religious liberty,” he said.
Brian Camenker of the anti-LGBT group MassResistance spoke to the American Family Association’s Sandy Rios this week about how same-sex marriage has wreaked havoc on Massachusetts since it became legal in 2004, declaring that ten years of marriage equality has been “terrible” for the Bay State.
“It is very, very scary. It has permeated the public school system, it has permeated the public health system, the legal system,” he said. “It has basically overwhelmed everything. It’s been a nightmare. It’s been very bad.”
Camenker’s remarks didn’t come as much of a surprise given that he once told The Daily Show that marriage equality would somehow contribute to homelessness, higher crime rates, and poorer air quality.
What did come as a surprise was Camenker conceding the point that bans on same-sex marriage are similar to laws banning interracial marriage ... and he did so by defending the constitutionality of anti-miscegenation laws!
On the face of it, the Fourteenth Amendment says that everybody will be treated equally, that the law will treat everyone equally. Well, the law treats everyone equally; everyone can only marry someone of the opposite sex. That’s it. There is no Fourteenth Amendment problem unless you stretch it to such ridiculous lengths and twist it around to claim there is. But yes, every person can only marry someone of the opposite sex. Now someone may say that it was the same issue with the miscegenation laws. And that’s true. The miscegenation laws were not a violation of the Fourteenth Amendment because they applied to everybody. As an aside, I was living in the South at the time when the miscegenation laws were struck down and the interesting thing about that was, nobody paid any attention to it, nobody cared, it was like page 25 in the newspaper, there weren’t these signature drives or meetings and gatherings. Nobody really cared at all. Here it is a much different thing because it really is a moral issue.
The Supreme Court in Loving v. Virginia struck down anti-miscegenation laws on the basis that they violated the Fourteenth Amendment. It was indeed a “moral issue” at the time, as many religious conservatives frequently alleged that interracial marriages were contrary to biblical teachings and natural law.
Equally preposterous is Camenker’s claim that “nobody cared” about the Loving decision. Many states have attempted to keep their anti-miscegenation laws on the books, and interracial couples have faced a long history of violence and discrimination.
At least Camenker, unlike other Religious Right activists, is being consistent in his opposition to the reasoning behind the Loving ruling and court decisions in favor of marriage equality for same-sex couples.