Supreme Court

New Report Examines Supreme Court’s Ideological Agenda for Corporations and Unions

A new report released today by People For the American Way Foundation explores how the Supreme Court’s extreme pro-corporate agenda over the years has been matched by increasingly dangerous attacks on working people.

Corporations, Unions, and Constitutional Democracy” by PFAW Foundation Senior Fellow Jamie Raskin explores how the Roberts Court’s right-wing majority has established a precedent for privileging corporations over individuals, while at the same times twisting First Amendment doctrine to undermine the right of workers to band together to win fair treatment in the workplace.

“In recent years, we’ve seen an increasingly extreme pro-corporate agenda from the Supreme Court, most notably in Citizens United,” said Marge Baker, Executive Vice President at People For the American Way Foundation. “What hasn’t received as much attention is the Court’s relentless attacks on working people. Today, the Friedrichs case represents the most deliberate attempt yet to replace the Court's longstanding precedent with an ideological pro-corporate agenda."

As Raskin writes in the report:

“The First Amendment has become the fulcrum of major constitutional decision-making related to both corporations and unions. It is the magical source of the unprecedented new political rights and powers conferred on corporations by Citizens United. It is also the putative basis of legal and juridical attacks on unions and their right to collect agency fees from workers they represent. It will be the terrain of struggle over growing efforts to grant dissident shareholders opt-out rights and objector rebates equivalent to what union objectors enjoy today.”

Raskin, who serves as a constitutional law professor at American University Washington College of Law and a Maryland State Senator, in addition to his role as PFAW Foundation Senior Fellow, is available to discuss the report and the Supreme Court’s recent decisions. Please contact media@pfaw.org to schedule an interview.

You can find the full text of the report at: http://www.pfaw.org/media-center/publications/corporations-unions-and-constitutional-democracy-when-it-comes-politics-ro

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Ben Carson: Gay Marriage Jeopardizes 'Live And Let Live,' Free Speech

Back in November, Ben Carson appeared on “Kingdom Connection with Jentezen Franklin,” to discuss how the U.S. Constitution “was written at an eighth-grade level” so “that the American people could understand it.”

However, Carson said that “the people who claim they are constitutional scholars,” like justices on the Supreme Court, are making a “mess” because, he alleged, they haven’t read the Constitution.

The Republican presidential candidate alleged that gay rights advocates want to classify certain speech as “hate speech,” claiming that they use “hate speech ridicule” to silence others and don’t believe in “live and let live.”

The way it works now is they target you and they have all kind of hate speech ridicule, if there’s a way they can bring action against you they will do that, try to ruin your life. Look at all the people who because of their religious convictions and their belief in what the Bible says have lost their livelihood and they’re put in jeopardy over the gay marriage issue, when in fact this is supposed to be a country where you live and let live. I personally don’t have any problem with any two people, regardless of what their feelings are, of living together, of getting a lawyer to create some documents so they can share property and have hospital visitation rights, but to change the definition of marriage, the problem is once you do that for one group, why wouldn’t you have to do that for the next group?

“Everybody gets equal rights, but nobody gets extra rights, extra rights to change everything for everybody else to suit them,” he added.

Carson went on to warn that “the secular-progressive movement” is bent on “beating people down so that they are silent” and having them “sit down and shut up so they can drive the boat.” If evangelical Christians don’t “stand up,” Carson warned, “it’s going to be too late.”

Anti-Gay Activists Rally Behind Roy Moore, Who Touts 'States' Rights'

Alabama Chief Justice Roy Moore is winning plaudits from Religious Right groups after he issued an administrative order directing probate judges in his state not to issue marriage licenses to same-sex couples. Moore was an anti-gay activist in his own right before returning to the court in 2013, founding the far-right Foundation for Moral Law, which has published yesterday’s order on its website.

Moore told the far-right site WorldNetDaily that the Obergefell case provides “a wonderful time to teach the people of our country about states’ rights,” explaining that his order reflects the fact that “states do have powers.”

Already, Moore is winning support from those who called on state and local officials, such as Kentucky clerk Kim Davis, to defy the Supreme Court’s Obergefell ruling.

Phillip Jauregui of the Judicial Action Group:

This Order is both courageous and very well-reasoned. We need more federal and state officers like Chief Justice Moore who understand that the job of the Federal Judiciary is not to legislate from the bench, but rather to simply decide disputes between parties consistent with the text of the Constitution. Judicial opinions, like Obergefell v. Hodges, that purport to set policy for all of America are simply not supported by the Constitutional grant of powers given to the Judiciary.

Thank God for Chief Justice Moore! Please keep him, his family, and his staff in your prayers!

Mat Staver of Liberty Counsel:

“I applaud Chief Justice Roy Moore for this order reaffirming the marriage law in Alabama,” said Mat Staver, Founder and Chairman of Liberty Counsel. “The Alabama Supreme Court issued an order in March 2015 barring probate judges from issuing same-sex marriage licenses after a federal court in January of last year overturned Alabama's voter-approved constitutional amendment defining marriage as one man and one woman,” Staver explained. “In Alabama and across America, state judiciaries and legislatures are standing up against the federal judiciary or anyone else who wants to come up with some cockeyed view that somehow the Constitution now births some newfound notion of same-sex marriage."

“The opinion of five lawyers on the U.S. Supreme Court regarding same-sex marriage is lawless and without legal or historical support," Staver concluded.

National Organization for Marriage:

These legal developments are consistent with the developing resistance in America to the Supreme Court's attempt to legislate from the bench when it comes to marriage, ignoring the federal constitution in the process and inventing out of thin air a "right" to same-sex 'marriage.'

The American people reject judicial activism of the US Supreme Court and their attempt to redefine marriage. They continue to support marriage as it has existed throughout our nation's history, the union of one man and one woman.

Sanctity of Marriage Alabama:

Sanctity of Marriage Alabama applauds Chief Justice Roy Moore for doing his job and clarifying what is, in fact, the current law in Alabama. Chief Justice Moore has a constitutional duty (see Ala. Code 12-2-30) as head of the judicial system to "[take affirmative action to correct any] situation adversely affecting the administration of justice within the state." He has done this today. We expect that the associate justices of the Alabama Supreme Court will once again follow the line of duty before God and the Constitutions of the United States and Alabama as they did back in March."

Bryan Fischer of American Family Radio:

Roy Moore Tries To Block Gay Marriage In Alabama, Again

Roy Moore, the chief justice of the Alabama Supreme Court, is trying to stoke yet another fight with the federal judiciary over marriage equality. 

Moore, a Republican with a harsh anti-gay record, was elected to serve as chief justice in 2012 after being removed from that same office in 2003 for defying a federal court ruling on his installation of a Ten Commandments monument in the courthouse rotunda. 

Early last year, Moore similarly challenged a federal court’s ruling striking down Alabama’s ban on same-sex marriage, cementing his status as a Religious Right hero and martyr.

It appears that he is not backing down from that fight, as today Moore released an administrative order, provided by the Southern Poverty Law Center, claiming that probate judges must abide by a state law barring same-sex marriage, despite the Supreme Court’s Obergefell ruling.

Confusion and uncertainty exist among the probate judges of this State as to the effect of Obergefell on the "existing orders" in API. Many probate judges are issuing marriage licenses to same-sex couples in accordance with Obergefell; others are issuing marriage licenses only to couples of the opposite gender or have ceased issuing all marriage licenses. This disparity affects the administration of justice in this State.



Yet the fact remains that the administration of justice in the State of Alabama has been adversely affected by the apparent conflict between the decision of the Alabama Supreme Court in API and the decision of the United States Supreme Court in Obergefell.



IT IS ORDERED AND DIRECTED THAT:
Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.

As Bryan Lyman of the Montgomery Advertiser pointed out, Alabama’s attorney general directed state agencies to comply with Obergefell, which struck down state bans on same-sex marriage.

Moore hinted that he would issue such an order back in July, when he claimed that states should defy gay marriage because it is “unlawful” and violates “higher law,” much like Nazi decrees. He has also stated that gay marriage is a Satanic plot that will usher in divine punishment and “literally cause the destruction of our country.”

In September, Moore vocally backed Kentucky clerk Kim Davis in her fight to deny marriage licenses to same-sex couples, comparing her to Holocaust victims.

The Foundation for Moral Law, which Moore founded and is currently led by his wife, Kayla Moore, also called on states to defy Obergefell and said it was “determined” to fight the decision in Alabama.

In a statement from his wife in June, which Moore shared on his Facebook page, the group said Obergefell was invalid and illegitimate: “Not only does the U.S. Supreme Court have no legal authority to redefine marriage, but also at least 2 members of the Court’s majority opinion were under a legal duty to recuse and refrain from voting. Their failure to recuse calls into question the validity of this decision.”

Elsewhere, Republican lawmakers in several states are trying to nullify Obergefell.

GOP legislators in Michigan and Tennessee are attempting to pass legislation negating the ruling in their states, and the Spartanburg Herald Journal reported yesterday on two Republican legislators in South Carolina who want to see the state challenge the marriage equality ruling:

Rep. Bill Chumley, R-Woodruff, and Rep. Mike Burns, R-Taylors, pre-filed a bill in the House to define marriage as between one man and one woman. He also aims for his bill to invalidate same-sex marriages in South Carolina. The bill is titled as the South Carolina Natural Marriage Defense Act.

"I represent the people, and the people have shown several times that they are opposed to this, and are in favor of traditional marriage," Chumley said.



The Supreme Court ruling in June legalizing same-sex marriage came down to a 5 to 4 vote, Chumley said. He said the split vote was indicative of the views of all Americans.

"Apparently, those four people believe like we do," he said. "I do believe that something that's a close vote like that sends a message, it's not cut and dry."

An Arizona Republican lawmaker has also filed a bill that would prohibit the state from implementing any executive order or Supreme Court decision.

HB 2024 would forbid the state from using its resources to implement any presidential executive order unless it had been approved by Congress and found to be constitutional. Rep. Mark Finchem, R-Oro Valley, said he crafted it even before President Obama announced on Tuesday he is taking executive action to redefine who is a gun dealer and subject to requirements to do background checks.



But HB 2024 also would extend the same language to decisions of the U.S. Supreme Court. Finchem said that, absent congressional action, there is no reason that Arizona should have to do anything — or use state resources — to comply with court rulings.

In fact, Finchem told Capitol Media Services it’s wrong to even call what comes from the high court a “ruling.” And he derided the idea that the justices created “case law.”

“It’s not law at all,” he said.

“It’s case opinion and past practice, past application,” continued Finchem who got seven other Republicans to sign on as co-sponsors of the measure. And he said that it really is just the opinion of the majority of justices in a given case.

“The court can pass an opinion all day long,” he said. “But until that opinion goes back to Congress and becomes an enactment, and is signed into law, a statute, by the president, it’s not operable.”



One ruling in that category is the decision by the justices that states cannot deny the right to wed to same-sex couples. The net effect was to tell states that if they issue marriage licenses they have to make them available to all couples regardless of sexual orientation.

Finchem said he sees no reason why the justices, on their own, can force that on states. He said civil marriage is essentially a creation of the Internal Revenue Service on the premise the taxing agency needed to know who was entitled to certain benefits.

“If the federal government wants to issue a gay marriage license, they’re free to do that,” Finchem said. “But it’s not a state license.”

More to the point, he said the federal government — and a federal court — cannot force the state to do something when it’s contrary to the state’s own constitution.

Carly Fiorina Promises To Nominate Anti-Choice Supreme Court Justices

In a conference call with anti-abortion activists last night, Republican presidential candidate Carly Fiorina promised that, if elected, she would “nominate pro-life justices” to the Supreme Court along with signing a budget defunding Planned Parenthood and pushing through a national 20-week abortion ban.

“Here’s what I will do and here’s what I want people to hold me accountable for,” she said on a conference call hosted by the Susan B. Anthony List's Marjorie Dannenfelser and Priests for Life's Frank Pavone. “If President Obama vetoes our attempts between now and the election — which, unfortunately, sadly, he may — I will deliver a budget that defunds Planned Parenthood. I will nominate pro-life justices. I will get the Pain Capable Unborn Child Protect Act passed.”

When she ran for Senate in California in 2010, Fiorina said that abortion rights would not be a litmus test for her votes on Supreme Court nominees.

Fiorina, who has come under fire for a series of falsehoods on the campaign trail, including repeatedly describing a video of Planned Parenthood that does not exist, also told participants that her main strategy for handling hostile questioning is to always “speak the truth.”

“You know, the truth shall set you free,” she said. “We all know this, we read it in the Bible. The truth shall set you free.”

“Don’t worry so much about finding exactly the right words, if that’s what you’re worried about,” she advised. “Worry about, concentrate on speaking the truth. Speak what you know to be the truth. that’s a powerful thing, it’s always a powerful thing, and that’s what I will keep doing. No one is going to frighten me into silence.”

Dannenfelser, the president of the Susan B. Anthony List, has made no secret of her admiration for Fiorina, telling call participants that Fiorina is a model candidate for her organization, which largely endorses female candidates opposed to abortion rights.

Ben Carson: 'America As We Know It Is Gone' If Hillary Clinton Pick Next Supreme Court Justices

On the Saturday edition of Breitbart News’ Sirius XM show, Ben Carson said that while he would consider leaving the Republican Party if officials “subvert the will of the voters” in the presidential nomination contest, he would rule out running as a third-party candidate for president.

“That would guarantee Hillary’s victory,” Carson said of a third-party bid. “If we get another progressive president and they get two or three Supreme Court picks, America as we know it is gone.”

Carson has previously said that if he is elected president, he would not feel obligated to recognize Supreme Court rulings, claiming the executive branch does not “have the responsibility to carry out a judicial law.”

Ginsburg Calls Out The Roberts Court's Empowering The Powerful

The Supreme Court issued a ruling today in another of its series of arbitration cases. Yet again, the Court upheld the ability of a powerful corporation to force consumers to agree to arbitration and sign away their right to engage in class action should the company violate their legal rights. Class actions are a vital mechanism to hold large businesses accountable. We’ve been writing about this trend for the past several years in cases like AT&T v. Concepcion and American Express v. Italian Colors Restaurant.

Unlike the other cases, today's ruling in DIRECTV v. Imburgia was not 5-4 in the predictable lineup. Instead, it was 6-3, with Justice Breyer writing the opinion, joined by Justices Kagan, Scalia, Alito, Kennedy, and Chief Justice Roberts. Justice Ginsburg (joined by Justice Sotomayor) dissented, while Justice Thomas had a separate dissent.

Ginsburg’s dissent opened up with clear description of how the Roberts Court has empowered corporations and weakened consumers:

It has become routine, in a large part due to this Court’s decisions, for powerful economic enterprises to write into their form contracts with consumers and employees no-class-action arbitration clauses. … Acknowledging the precedent so far set by the Court, I would take no further step to disarm consumers, leaving them without effective access to justice.

Americans have long been able to count on strong consumer protection laws to protect them for being victimized by predatory corporations. Those laws, including the right to class actions, have been essential in letting ordinary people stand as equals to giant corporations and hold those businesses accountable. Ginsburg is correct to say that the line of 5-4 arbitration cases has left us “disarmed,” because giant corporations are increasingly empowered to change the relationship between buyer and seller into one between predator and prey. We are, indeed, disarmed and without effective access to justice … despite laws designed to protect us. In closing, Ginsburg wrote that the Court is:

further degrading the rights of consumers and further insulating already powerful economic entities from liability for unlawful acts.

We deserve better from our nation’s Supreme Court.

Ginsburg Calls Out the Roberts Court's Empowering of the Powerful

Ginsburg writes that the Roberts Court has left consumers disarmed and without effective access to justice.
PFAW Foundation

Mike Huckabee: Ignoring Gay Marriage Ruling Is 'A Matter Of Saving Our Republic'

Mike Huckabee once again insisted that Supreme Court rulings are simply opinions that carry no legal authority if not for the “good will” and “assent” of the legislative and executive branches, this time making the case for defiance of the top court in an interview with Robert George on the Catholic television network EWTN this weekend.

If elected president, Huckabee said, he would “absolutely decline” to enforce the Supreme Court’s marriage equality decision and order the Justice Department to “protect in every way the rights of those citizens who joined in disagreeing.”

“It’s a matter of saving our republic to say that as president, we’re not going to accept this decision, we will ignore it and we will not enforce it,” Huckabee said, adding that he would only recognize same-sex marriages in states that legalize same-sex marriage, or polygamy, for that matter, “by a vote of its people.”

When George asked if conservatives then “couldn’t criticize” President Obama for acting lawlessly “if he refused to enforce” recent Supreme Court rulings on campaign finance reform and gun control, Huckabee responded, “Well, no.” He said that if that were to happen, Congress should then exercise its power to impeach the president or defund the executive branch, seeming to open himself up to impeachment if he decided to defy the courts on same-sex marriage.

Ted Cruz: President Can Ignore 'Fundamentally Illegitimate,' Nazi-Like Gay Marriage Decision

In an interview with influential social conservative commentator Robert George on the Catholic television network EWTN last month, Sen. Ted Cruz, R-Texas, said that the president should defy the Supreme Court’s “fundamentally illegitimate” decision striking down bans on same-sex marriage, which he compared to “Nazi decrees.”

George, the co-founder of the National Organization for Marriage and a mentor of Cruz’s, likened the court’s “tragic mistake” in Obergefell to infamous Supreme Court decisions including Dred Scott, asking Cruz, “Was Lincoln right to defy the court on [Dred Scott] and would you, as president, do that with the Obergefell decision?”

“Lincoln was absolutely right, I agree with President Lincoln,” Cruz responded. “And courts do not make law. That is not what a court does. A court interprets the law, a court applies the law, but courts don’t make law.”

Saying that it is “profoundly wrong” to refer to the gay marriage decision as the law of the land, Cruz said, “I think the decision was fundamentally illegitimate, it was lawless, it was not based on the Constitution.”

Cruz then brought up remarks that Justice Anthony Kennedy made recently at Harvard Law School, in which he discussed when it is the duty of public officials to resign rather than carry out laws that they think are unjust, such as in the case of opponents of marriage equality. Kennedy used the extreme example of judges who resigned under Nazi rule, saying that whether they can morally carry out their official duties is “a fair question that officials can and should ask themselves” and that “great respect … ought to be given to people who resign rather than do something they think is morally wrong in order to make a point.”

This, Cruz declared, amounted to Kennedy comparing “the Supreme Court of the United States to the Nazis.”

“This isn’t me calling them the Nazis,” he said, “this is Justice Kennedy calling the court on which he serves, calling the opinion that he wrote, analogizing that to the Nazi decrees that we must obey.”

George interjected: “Just to be clear, surely Justice Kennedy was not embracing Nazism.”

Cruz hesitated and smiled. “He drew the analogy,” he said, “and the obvious implication was just as you were forced to obey the Nazis, you’re forced to obey us as well … even if we are tyrannical and oppressive. Now, look, certainly he wasn’t embracing all of the horrible things the Nazis did but to make that analogy, that is essentially saying, we wear the jackboot and you must obey us.”

Michigan Republicans Urge State To Ignore 'Illegitimate' Marriage Equality Ruling

A Michigan lawmaker is introducing a resolution urging state officials to ignore the Supreme Court’s marriage equality decision, calling the decision “illegitimate” and urging officials to “re-claim this state’s sovereignty by not recognizing or enforcing.”

MLive.com reports:

State Rep. Tom Hooker, R-Byron Center, read his pending resolution out loud Wednesday during a "rally to protect religious people and stop persecution of religious people" outside the Michigan Capitol.

"The Supreme Court is not a Legislature," Hooker said. "Courts do not substitute their social and economic beliefs for the judgement of legislative bodies or elected and passed laws."
The rally, organized by a Christian non-profit called Salt & Light Global, drew a couple hundred people to Lansing.

Other speakers included Sen. Patrick Colbeck, R-Canton, who is expected to introduce a similar resolution in the upper chamber, and Rep. Lee Chatfield, R-Levering, who told the crowd that he will co-sponsor Hooker's version in the House.

Hooker’s resolution reads, in part:

Resolved by the House of Representatives (the Senate concurring), That it is the sense of the Michigan Legislature that the United States Supreme Court’s decision in Obergefell v. Hodges is illegitimate because the five justice majority, in reaching its decision, acted without constitutional authority and unconstitutionally usurped power expressly reserved by the United States Constitution to the states and the people; and be it further

Resolved, That under these circumstances, it is the duty of the politically accountable branches of the federal and state governments to preserve and protect constitutional governance under the rule of law; and be it further

Resolved, That we urge the Governor and all executive officers in the state of Michigan to uphold their oaths of office and re-claim this state’s sovereignty by not recognizing or enforcing the United States Supreme Court’s Obergefell decision as a rule of law …

Speaking at the “religious liberty” rally outside the state capitol, Colbeck, who plans to sponsor a Senate version of the bill, compared the position of Christians in America to that of people persecuted by ISIS.

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.

PFAW

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.

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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.”

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