Supreme Court

America's History of Amending the Constitution to Expand Democracy (And Overturn the Supreme Court)

The 28th Amendment would overturn cases like Citizens United and enhance political democracy and the First Amendment.
PFAW Foundation

Still In Store from the Supreme Court in 2014

There is about a month remaining before the end of the Supreme Court’s current term, which is expected to be at the end of June.  The Roberts Court has already done great damage in the cases it has decided so far.  The far-right’s ruling in McCutcheon v. FEC drove another dagger into the heart of our democracy by empowering the wealthiest and most powerful among us to exercise even more control over our election.  Town of Greece v. Galloway continued the arch-conservatives’ goal to undermine the constitutionally mandated separation of church and state.

But there are many important cases remaining to be decided over the next several weeks.  Depending on how the Court rules, the entrenched power imbalance already harming our democracy could be significantly worsened.

Recess appointments and sabotage of the executive branch:  NLRB v. Noel Canning.

This case has the potential of completely remaking the president’s recess appointment authority from how it has been understood and exercised since the 1800s.  The recess appointment power has long been used by presidents of both parties during all kinds of recesses, not just those occurring annually between sessions of Congress.  And it has always been used to fill vacancies regardless of when those vacancies first became open.  But that may soon change.

It’s important to note that this case arose out of far-right conservatives’ efforts to nullify laws they don’t agree with.  In this case, the laws in their crosshairs were those protecting workers, which they sought to undermine by preventing the National Labor Relations Board from having enough members to conduct business.  Specifically, Republicans blocked the Senate from holding confirmation votes on President Obama’s  nominees to the NLRB, finally provoking him to make recess appointments in January of 2012.  This was during a vacation period when the Senate was meeting for pro forma sessions for a few minutes every few days, a practice that came about for the specific purpose of preventing recess appointments.

The Supreme Court has been asked to answer several questions:  (1) Can a recess appointment be made only during the recess between two sessions of Congress (which occurs once a year and can last only a split second), or can it be made during any recess?  (2)  Can the Senate use pro forma sessions to turn what would otherwise be a recess into a non-recess, thereby preventing recess appointments?  (3)  Is a recess appointment limited to those vacancies that first became open during the same recess during which the appointment is made?

Attacks on public sector unions:  Harris v. Quinn.

This case is about home care personal assistants (PAs) in Illinois, who provide in-home care under two of its Medicaid programs to people with disabilities and other health needs.  But it has the potential, should the Roberts Court wish, to deliver a crippling blow to public sector unions nationwide.

Illinois PAs are classified as state employees for the purposes of collective bargaining and work under a common “agency shop” agreement:  If the employees in a particular group choose to have a union represent them, the government employer recognizes that union as their exclusive representative.  When the union carries out its collective bargaining functions, it does so on behalf of all the employees, regardless of whether they actually join the union.  Members pay dues to support this activity on their behalf.  To prevent “free riding,” the law requires non-union members to pay their fair share to support the basic collective bargaining activities being done on their behalf, but not to support non-collective bargaining activities such as political campaigning with which they might disagree.

The Supreme Court has long recognized that such arrangements for public employees are consistent with the First Amendment, dating back to a 1977 case called Abood v. Detroit Board of Education.  But that precedent is threatened in this case as petitioners – backed by the anti-worker National Right to Work Legal Defense Foundation – call for the Roberts Court to overrule Abood.  According to the PAs who brought this case, the arrangement violates their First Amendment freedom to choose with whom to associate.  They also claim that exclusive representation violates their right to petition the government on matters of public policy, since the subject of their negotiations is the functioning and budgets of state Medicaid programs.

As Justice Kagan noted during oral arguments, this “would radically restructure the way workplaces across this country are run,” imposing so-called “right to work” regimes on all public employment throughout the United States.  In so doing, it would substantially drain the coffers of public sector unions, which has been a longtime political goal of conservative extremists.

Unfortunately, the far-right Justices on the Roberts Court have already demonstrated their eagerness to join in the political attack on workers.  Two years ago, in Knox v. SEIU (another case involving public sector unions), they severely undercut another longtime precedent that had enabled public sector unions to protect workers’ rights by deciding an issue that wasn’t before them, ruling against the union on an issue that it had not even had a chance to argue.  As Justice Sotomayor pointed out in her dissent, the majority was acting in violation of the Court’s own rules to achieve this result.  Whether they will show a similar eagerness to undercut public sector unions remains to be seen.

Corporate religious liberty rights:  Sebelius v. Hobby Lobby and Conestoga Wood Specialties Corp. v. Sebelius.

These cases have the potential to give religious liberty rights to for-profit corporations, and to empower their owners and managers to ignore laws on health insurance coverage, employment discrimination, and other areas based on their religious beliefs.

Under the Affordable Care Act and HHS guidelines, employers generally have to provide certain preventive health services, including FDA-approved contraception, to women employees.  The cases challenging this requirement involve several companies and their owners.  Conestoga Wood is a for-profit corporation with 950 employees, owned by members of the Hahn family.  Hobby Lobby is an arts and crafts chain store with over 500 stores and about 13,000 full-time employees, owned by members of the Green family.  The Greens also own a corporation called Mardel, a chain of 35 for-profit Christian bookstores with about 400 employees.

The Greens and the Hahns have religious-based opposition to the use of some of the contraceptives covered by the law.  They claim that the law violates not only their own religious freedom, but also the religious freedom of the large for-profit corporations they run.  The primary law at issue in the cases is the Religious Freedom Restoration Act (RFRA), enacted in 1993.  Under RFRA, a federal law cannot “substantially burden a person’s exercise of religion” unless it advances a compelling government interest in the least restrictive manner.

A key question for the Justices is whether a for-profit corporation is a “person” covered by RFRA.  Unsurprisingly, before this litigation, no court had ever found that for-profit corporations have religious liberty interests either under RFRA or under the First Amendment.  Yet a divided Tenth Circuit ruled for Hobby Lobby: They concluded that since corporations have First Amendment political speech rights under Citizens United, it follows that they also have First Amendment religious rights, and that RFRA should be interpreted to include them as “persons.”  As PFAW Foundation Senior Fellow Jamie Raskin has written, “the outlandish claims of the company involved would not have a prayer except for Citizens United, the miracle gift of 2010 that just keeps giving.”

The next question is whether the coverage requirement is a substantial burden on the families’ (and possibly corporations’) exercise of religion, even though they are not forced to use or administer the contraception, or to affirm that they have no religious objection to it.  Since the ones providing the health insurance are the corporations and not the individual owners, a ruling in favor of the owners would have implications for a concept basic to American law: that a corporation is a legally separate entity from its owners.

If the Justices find a substantial burden on the corporations or their owners, then they will determine if the government interest (furthering women’s health and equality) is a compelling one, and if the coverage provision advances that interest in the least restrictive manner.

While a victory for either the corporations or their owners would directly harm women’s health, it could also open the door to employers being able to exempt themselves from other laws that they have religious objections to, such as anti-discrimination protections.

Women’s Access to Reproductive Health Clinics:  McCullen v. Coakley.

The Court is being asked to overrule a 2000 precedent upholding buffer zones around reproductive health clinics.  The current case involves a Massachusetts law that creates a 35-foot buffer zone around such clinics (with exceptions for employees, patients and others with business there, and people passing through on their way somewhere else).  Anti-choice advocates claim this violates their freedom of speech because it restricts only people with a particular viewpoint.

The lower courts disagreed, citing the 2000 case of Hill v. Colorado, where the Supreme Court upheld a buffer zone making it illegal to approach within eight feet of people at clinics for the purpose of counseling, education, or protesting.  (This applied anywhere within 100 feet of the clinic.)  That 6-3 decision analyzed the law as a content-neutral regulation of speech that was reasonable in light of the importance of protecting unwilling people’s right to avoid unwanted conversations and their right to pass without obstruction.  However, two of the conservative Justices in the 6-3 majority have been replaced by far more conservative Bush nominees:  Rehnquist (by Roberts) and O’Connor (by Alito).  Since Justices Kennedy, Scalia, and Thomas dissented in the 2000 case, there may very well be five votes to not only strike down the Massachusetts buffer zone but also to overrule Hill completely.

As noted in an amicus brief that PFAW Foundation joined, the Massachusetts law applies to people regardless of the content of their speech and is a content-neutral way to ensure that women can enter the clinics to exercise their constitutional rights.  The law does not prevent abortion opponents from approaching women who are more than 35 feet from the clinic entrance (as opposed to the Colorado law, which prohibited unwanted close contact anywhere within 100 feet of the clinic). And the record in this case shows that anti-choice advocates have consistently been able to distribute literature to individuals approaching clinics, as well as to have quiet conversations with them.

Nevertheless, many felt after oral arguments that five conservative justices were likely to strike down the Massachusetts law.  If they do, we will see if they also overrule the 2000 precedent, opening the floodgates to another era of efforts to block women from exercising a deeply personal constitutional right.

Regulating greenhouse gases:  Utility Air Regulatory Group v. EPA (and several companion cases).

In these cases, industrial interests and their allies are attacking the EPA’s ability to effectively regulate their greenhouse gas emissions.

In Massachusetts v. EPA in 2007, the Supreme Court ruled in a 5-4 decision that the EPA has the authority under the Clean Air Act to regulate emissions of greenhouse gases from new motor vehicles, since they easily fit within the CAA’s broad definition of “air pollutant.”  This ruling, resisted by the Bush Administration, allowed the Obama Administration to adopt regulations on greenhouse gases from cars and trucks in 2010.

Under the EPA’s longstanding interpretation of the Clean Air Act, once EPA regulation of a pollutant from mobile sources (like cars and trucks) goes into effect, that pollutant is automatically subject to regulation under EPA rules for stationary sources (like factories and power plants).  Those regulations involve permitting requirements for facilities emitting pollutants over statutory thresholds.  But greenhouse gases are emitted in far greater volumes than other pollutants, and millions of industrial, commercial, and even residential sources exceed the statutory threshold.  The EPA recognized that immediately adding these millions of stationary sources to its permitting programs would impose tremendous costs to both industry and to state permitting authorities.  So in what is called the “Tailoring Rule,” the agency chose to move gradually, initially subjecting only the largest sources of emissions to mandatory greenhouse gas permitting, and planning a gradual phase-in for others, with planned rulemakings on how best to accomplish that phase-in.

Industrial interests, the Chamber of Commerce, and their conservative allies in state government have challenged the EPA rules.  They argue that since the addition of greenhouse gases to the stationary sources permitting programs would cause what they characterize as results not desired by Congress (such as bringing huge numbers of buildings, including churches, schools, bakeries, and large private homes into the programs), it means that greenhouse gases are not the type of pollutant to which these permitting programs apply.  And that lets the major industrial contributors to greenhouse gas pollution off the hook.  They also claim that the Tailoring Rule is a rewrite of the Clean Air Act, which only Congress can do.  So we end up with hyperbolic right-wing talking points in Supreme Court briefs, like this from Southeastern Legal Foundation:

This case involves perhaps the most audacious seizure of pure legislative power over domestic economic matters attempted by the Executive Branch since Youngstown Sheet & Tube [the 1952 case striking down President Truman’s seizure of steel mills during the Korean War].

As the Constitutional Accountability Center noted in their amicus brief supporting the EPA, the agency’s gradual approach satisfies rather than subverts the central purpose of the Clean Air Act:

This is not a suspension of the relevant statutory provisions nor a failure to enforce the CAA as written.  To the contrary, EPA is setting priorities based on both practical realities and its limited resources, biting off no more than it or, as important, the regulated entities themselves, can chew at any given time. This phase-in of the CAA’s requirements is not a rewrite of the statute, and it is fully consistent with the executive authority vested in the President by Article II of our enduring Constitution and the separation of powers evidenced in the Framers’ design.

PFAW Foundation

Bryan Fischer: Reading Clarence Thomas Is Like 'Listening To Myself'

American Family Association spokesman Bryan Fischer said on his radio program today that he loved Justice Clarence Thomas’s concurring opinion in Town of Greece v. Galloway so much that after reading an excerpt to his audience, he remarked, “I’m reading this and I’m thinking, man, I’m listening to myself.”

As Peter noted, Thomas argued that “the Establishment Clause of the First Amendment does not apply to the states at all,” a view shared by Fischer.

“Clarence Thomas is sounding like me,” Fischer said. “There’s no restrictions on what states can do, according to the First Amendment.”

Scalia's Mistake Exposes His Ideological Agenda

Justice Scalia's factual error in an EPA case dissent suggests he is approaching cases with an overly ideological lens.
PFAW Foundation

Sotomayor's Schuette Dissent

Justice Sotomayor analyzes a state constitutional ban on affirmative action through the lens of history and the reality of race in America.
PFAW Foundation

What If Hobby Lobby Wins?

David Barton, an influential conservative activist who helped write the Republican Party’s 2012 platform, argues that the Bible opposes the minimum wage, unions and collective bargaining, estate taxes, capital gains taxes, and progressive taxation in general. Should a company whose owners share Barton’s views be allowed to ignore laws that protect workers by claiming that those laws violate the company’s religious beliefs?

That’s a questions being asked as the U.S. Supreme Court considers whether it will recognize for the first time ever that for-profit corporations can make religious freedom claims under federal law.

When an actual human being goes to court with a claim that the federal government is violating their freedom to practice their religion, judges consider several questions in applying the Religious Freedom Restoration Act: Does the law or policy in question place a substantial burden on the person’s religious exercise? If so, can it be justified because the law is advancing a compelling government interest and doing so in the least restrictive way?

That’s pretty straightforward, even if individual cases require tough judgment calls about what constitutes a substantial burden and a compelling government interest. But what happens when a for-profit corporation claims a law violates its exercise of religion? Can a business have a religious conscience?

That crucial question is being considered by the Supreme Court in two cases brought by for-profit corporations claiming their religious freedom is violated by a requirement that their insurance plans include comprehensive contraception coverage. In Sebelius v. Hobby Lobby Stores and Conestoga Specialties Corp. v. Sebelius, business owners say their companies should not be required to provide their employees with insurance that covers kinds of contraception that violate the business owners’ religious beliefs or what they say are the religious beliefs of the corporation itself.

Legal scholars have weighed in on both sides of the claim. While federal courts have never recognized a for-profit corporation’s right to make a religious exercise claim, they have also never explicitly ruled that there is no such right. In the cases now before the Supreme Court, two appeals courts disagreed with each other. The Tenth Circuit sided with Hobby Lobby but the Third Circuit said, “[W]e simply cannot understand how a for-profit secular corporation—apart from its owners—can exercise religion.”

If the Supreme Court sets a new precedent granting for-profit corporations a soul, so to speak, where will it end? Law professors Ira Lupu and Robert Tuttle warn that it would produce “a massive redistribution of legal leverage away from employees and to their employers.” And, they write, “If Hobby Lobby’s claims prevail…other employer claims under RFRA will be very difficult to deny. Some current cases involve objections to coverage of all pregnancy prevention services. In the future, others may involve protection of employees with respect to different medical services, collective bargaining, family leave, or invidious discrimination.”

The Becket Fund, the conservative legal group representing Hobby Lobby, dismisses concerns about opening the floodgates to all kinds of religious objections, saying it hasn’t happened under RFRA to date. But of course, no Court has yet invited the flood of objections by giving business owners the right to claim corporate exemptions for religious belief.

Justice Elena Kagan raised this concern during oral argument, asking Hobby Lobby’s lawyer Paul Clement about employers who might have religious objections to sex discrimination laws, minimum wage laws, and child labor or family leave laws. Clement said he doubted the “parade of horribles” would happen. But Justice Kagan replied that if the Court were to adopt his argument, “then you would see religious objectors come out of the woodwork with respect to all of these laws." Solicitor General Paul Verrilli noted that if the Court grants corporations a right to make free exercise claims, judges will have to grapple with potential harm to employees and other third parties.

But it’s not just employees who could be hurt by such a ruling – it could be companies themselves. David Gans, writing for Slate, made an interesting observation: corporate America is staying out of this case almost completely, which is surprising given its eagerness to use federal courts to promote corporate interests. Gans says that not a single Fortune 500 company filed a brief in the case. Neither did the Chamber of Commerce or the National Federation of Independent Business. The corporate voices that did weigh in — the U.S. Women’s Chamber of Commerce and the National Gay and Lesbian Chamber of Commerce — oppose Hobby Lobby’s claims because recognizing a corporate right to the free exercise of religion would “wreak havoc in corporate boardrooms.”

Gans cites a brief from a group of corporate law scholars “who argued that Hobby Lobby’s argument would eviscerate the fabric of corporate law” because ascribing a business owner’s religious views to the corporation would treat the owner and company as one and the same. “Such an unprincipled, idiosyncratic exception from corporate law fundamentals, the scholars argued, would breed confusion in the law, lead to costly litigation, and undermine critical aspects of corporate law designed to spur creativity and innovation.”

Mary Ann Glendon, a law professor who serves on Becket’s board, has argued that if we want businesses to behave responsibly, “they must be treated as having some moral agency.” The Supreme Court, she says, “should take the opportunity to confirm that businesses can and should have consciences.” It’s a nice thought. But given right-wing efforts to merge the Tea Party and Religious Right, and foster a growing belief that far-right economics and anti-government ideology are grounded in religious dogma, it seems highly unlikely that the consequence of giving conservative business leaders a powerful new tool for undermining government regulation would be more socially responsible corporate behavior.

American Decency Association: Gay Rights Have Turned America Into North Korea

Anti-gay activists are incensed that the Supreme Court declined to hear an appeal by a New Mexico photographer who violated the state’s anti-discrimination laws, and the American Decency Association is citing the case as proof that the United States has morphed into North Korea.

“Have we been transported to North Korea? Since when do we have to check our First Amendment freedoms at the door in order to live and work as a citizen of the United States?” the group asked, lamenting that the government is bent on “forcing Christians to closet their faith and bow before our nation’s golden idol giving glory, laud, and honor to all things homosexual.”

Each week it seems the courts and the culture delivers another blow in their attempt to take down biblical truth. Yesterday the U.S. Supreme Court announced their refusal to hear the appeal case of Elaine Huguenin, the New Mexico photographer who was found guilty and punished by the New Mexico Supreme Court for putting her faith into practice – politely declining a request to take pictures of a lesbian couple’s “commitment ceremony” due to her religious beliefs.



With the U.S. Supreme Court’s refusal to hear this case and weigh in on the constitutional issue of religious rights vs. “gay rights” the justices have, in essence, spoken by their silence. And the verdict is that “gay rights” wins and the First Amendment loses.

The appalling New Mexico ruling will stand. A ruling where one justice actually stated that Christian business owners are “now compelled by law to compromise the very religious beliefs that inspire their lives." The ruling by this court went on to state that such coercion is "the price of citizenship."

The “price of citizenship”?? Have we been transported to North Korea? Since when do we have to check our First Amendment freedoms at the door in order to live and work as a citizen of the United States? What happened to the land of the free where we have the free exercise of religion?



Yet that is exactly what the government is doing (with a complicit stamp of approval from the U.S. Supreme Court) – forcing Christians to closet their faith and bow before our nation’s golden idol giving glory, laud, and honor to all things homosexual.

Applying McCutcheon's Logic to Voter ID Laws

If only the courts were as solicitous of the right to vote in elections as they are of the right to purchase them.
PFAW Foundation

How Much Congressional Representation Does Billionaire Shaun McCutcheon Have?

This post originally appeared on the People For blog.

Chief Justice Roberts caps his opinion in McCutcheon v. FEC by waxing eloquently about the need to ensure that elected officials are responsive to the people. This and other cases have described campaign contributions as a way to promote such responsiveness. But considering that this case is about a non-constituent buying influence in elections across the country, the passage's repeated references to constituents seems strangely out of place:

For the past 40 years, our campaign finance jurisprudence has focused on the need to preserve authority for the Government to combat corruption, without at the same time compromising the political responsiveness at the heart of the democratic process, or allowing the Government to favor some participants in that process over others. As Edmund Burke explained in his famous speech to the electors of Bristol, a representative owes constituents the exercise of his "mature judgment," but judgment informed by "the strictest union, the closest correspondence, and the most unreserved communication with his constituents." Constituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials. (emphasis added, internal citations removed)

Shaun McCutcheon – whose contributions are at issue in this case – told the Court that he wanted to make contributions of $1,776 to each of more than two dozen different congressional candidates (as well as to various party committees) during the 2012 election cycle. It seems unlikely that he could have been a constituent of more than two dozen different members of Congress.

Obviously, people have a First Amendment right to participate in congressional races outside of where they live. But a stirring paragraph about political responsiveness to constituents hardly seems appropriate in a case that is all about political responsiveness to non-constituents.

In McCutcheon Decision, Talk of Constituents Seems Out of Place

Chief Justice Roberts waxes eloquent about responsiveness to constituents in an opinion about responsiveness to non-constituents.
PFAW Foundation

Supreme Court's McCutcheon Decision Is Great News For Billionaires

This post originally appeared on the People For blog.

The Supreme Court's McCutcheon opinion, released this morning, is another 5-4 body blow to our democracy. To justify striking down limits that cap aggregate campaign contributions during a single election cycle, the Roberts Court ignores the way the world really works and makes it far more difficult to justify much-needed protections against those who would purchase our elections and elected officials.

Americans are deeply concerned that control of our elections and our government is being usurped by a tiny sliver of extremely wealthy and powerful individuals (and the corporations they control). That is not the democracy that our Constitution established and protects. The enormous impact of money in politics can destroy a democracy, undermining its foundations by disconnecting elected officials from the people they are supposed to serve and eroding the trust of the people in their system of government.

But the Roberts Court today stressed that campaign contributions can be justified under the First Amendment only if they address "quid pro quo" corruption – i.e. bribery – despite contrary pre-Citizens United holdings with a broader and more realistic vision. A democratic system rotting at its core – a government of, by, and for the wealthy – is not corrupt in their eyes.

If a wealthy person gives millions of dollars to a party (distributed to the party's multiple candidates and PACs across the country), he clearly exercises enormous influence over the laws that get passed. What the voters want becomes far less relevant, because it's the billionaire whose money is vital to getting elected. A government where elected officials allow a few plutocrats to have enormous access and influence over their policies is not an indication of a healthy government of, by, and for the people.

As Justice Breyer write in his McCutcheon dissent:

Today a majority of the Court overrules this holding [Buckley's 1976 upholding of aggregate limits]. It is wrong to do so. Its conclusion rests upon its own, not a record-based, view of the facts. Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of protecting the political integrity of our governmental institutions. It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate's campaign. Taken together with Citizens United v. Federal Election Comm'n, 558 U. S. 310 (2010), today's decision eviscerates our Nation's campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.

Americans are organizing around the country to restore our democracy in light of Citizens United and other dangerous court opinions. Today's McCutcheon opinion gives us another reason to rally.

Last year, People For the American Way Foundation released an analysis of McCutcheon within the context of the Supreme Court's past rulings on campaign finance.

Supreme Court's McCutcheon Decision is Great News for Billionaires

The American people should have the power to prevent government of, by, and for the wealthy.
PFAW Foundation

Eagle Forum: Marriage Equality Cases Put America 'In The Danger Zone'

Eagle Forum’s Virginia Armstrong, who leads the group’s Court Watch Project, writes in a “Court Watch briefing” today that the Supreme Court’s recent decisions on the Defense of Marriage Act and Proposition 8 have displaced the “Judeo-Christian/Constitutionalist worldview” in favor of “Humanism/Reconstructionism,” which she warns “wreaks havoc with the concepts of absolute truth and inherent logic of the Law.”

Armstrong writes that the gay rights cases have pushed America to the “breaking point” and into the “danger zone” that will undermine the rule of law.

Has America has bent over backwards too far in its spiritual, moral, and constitutional life so that we are in danger of “breaking”? This question is central to our current series of Court Watch Briefings. The question has been precipitated by America’s Culture War and echoes the anguished cry of the Father in the famous musical production, “Fiddler on the Roof,” who felt that revolutionary changes in his world were pushing him to the “breaking point.”

We are proving that America is indeed in the “danger zone” and is in dire need of a massive “straightening up process.” Nothing more clearly demonstrates this fact than the recent same-sex marriage decisions of the U.S. Supreme Court — Perry v. Hollingsworth and Windsor v. U.S.



The Humanist/Reconstructionist position on epistemology is fatally flawed at every turn, as revealed in the pro-homosexual court decisions in Hollingsworth v. Perry and Windsor v. U.S. We must remember that Perry/Windsor reflect far more than the specific issues and positions of the immediate parties to the cases. Rather, they afford us a panoramic view of the entire homosexual rights battle and should be viewed in that light.



The real conflict in Perry/Windsor and similar cases is that of the whole Culture War conflict — the War of Worldviews between Humanism/Reconstructionism and the Judeo-Christian/Constitutionalist worldview. What is at stake, as Harold Berman demonstrates in his analysis (to which we have been referring), is the “very collapse of our entire Western legal tradition.” The Perry/Windsor epistemology wreaks havoc with the concepts of absolute truth and inherent logic of the Law — key components of the Western legal tradition outlined by Professor Berman. And as Nancy Pearcey of Houston Baptist University’s Schaeffer Center so cogently states, “The clash between these two understandings of morality [the Judeo-Christian v. the Humanistic] will determine whether liberty is gained or lost in the 21st century. It is imperative to reassert the transcendent moral truths that undergird freedom in every society.”

Todd Starnes Suggests God Opposes Obamacare

In a radio bulletin yesterday about today’s Supreme Court hearing on Hobby Lobby’s challenge to Obamacare’s contraception mandate, Fox News commentator Todd Starnes said that the case really presents a choice between Obamacare and God: “Obamacare takes on the Almighty tomorrow at the Supreme Court.”

Starnes said that the contraception mandate will “force” Christians to pay for “life-terminating drugs” and will let “Obamacare trump religious liberty.”

However, as Tiffany Stanely of The Daily Beast notes, “the contraceptives in question” are “not being used to terminate established pregnancies.”

Roberts Court Leaves Workers and Employers Hanging

A case dismissal leaves intact a damaging lower court opinion whose questionable validity prompted the dismissal.
PFAW Foundation

McConnell to Participate in Recess Appointments Case

The Roberts Court will let the GOP leader participate in oral arguments in a constitutional case that his party's obstruction engendered.
PFAW

Scalia's Nightmare: Evil Foreigners Impose Marriage Equality on U.S.

In coming up with a scary hypothetical regarding the limits of congressional authority, Scalia turns to marriage equality.
PFAW Foundation
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