Supreme Court

Diversity vs. Scalia at Marriage Oral Arguments

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

War And Terrorists And Floods, Oh My! The Right's Five Worst Predictions About Marriage Equality

Mike Huckabee thinks Christianity will soon be outlawed to make room for gay rights. Ted Cruz fears “liberal fascism; and a pro-gay “jihad” are destroying liberty. Bobby Jindal believes freedom will soon be extinguished as reality stars lose their apparent constitutional right to appear on television.

These GOP presidential hopefuls are not shying away from the gay marriage issue, which comes as no surprise since the GOP’s right-wing base has been whipped into a frenzy by conservative talk radio hosts and activists who have insisted that freedom will be no more if the Supreme Court strikes down bans on same-sex marriage.

Here are five of the far right’s wildest predictions about what would happen if gay marriage becomes legal nationwide:

1) War!

Several Religious Right pundits believe that a Supreme Court ruling striking down same-sex marriage bans would spark a full-blown rebellion, if not a civil war.

Focus on the Family founder James Dobson said that the country could witness a second civil war over the Supreme Court’s decision, while Mat Staver of the conservative legal group Liberty Counsel said the court “could cause another civil war” if it legalizes same-sex marriage.

The Texas chapter of Eagle Forum warned the Supreme Court in an amicus brief that a ruling that “imposes homosexual marriage” on the country “would cause vastly more conflict” than the infamous 1857 Dred Scott decision. Not to be outdone, conservative activist Alan Keyes predicted that marriage equality will lead to mass murder and “the separation and dissolution of the United States.”

At least one conservative author thinks that the states of Florida, Georgia and South Carolina should consider seceding from the U.S. and establish their own country in order to preserve gay marriage bans. This new country, naturally, will be named “Reagan.”

2) Terrorism!

David Lane, a conservative political organizer with close ties to the GOP and several Republican presidential candidates, has warned that God will soon usher in a wave of terrorist attacks as punishment for America’s acceptance of homosexuality and abortion. Infuriated by “homosexuals praying” at President Obama’s second inauguration, Lane claimed that God can show the country mercy but it will be a “very painful process,” including “car bombs in Los Angeles, Washington D.C. and Des Moines, Iowa.”

American Family Radio host Bryan Fischer warned that because America’s “gay gestapo” is acting like the men of Sodom who tried to rape angels, God will “run out of patience with the United States” and “use pagan armies to discipline his people if they turn from him in rebellion and disobedience and descend into debauchery.”

“What if God will use the pagan armies of Allah to discipline the United States for our debauchery?” he wondered.

Neither prediction holds a candle, however, to talk show host Rick Wiles’ frequent prediction that gay rights will lead to a nuclear attack on the country.

3) Apocalypse!

Pastor Robert Jeffress, a Fox News contributor and author of “Countdown to the Apocalypse,” has called gay marriage “the greatest sign of the End Times that we see in our country right now,” warning that the Supreme Court will embolden pro-gay “extremists” to “make us all bow down and bless what God has called a perversion.”

Janet Porter, an anti-gay activist who held a rally outside of the Supreme Court yesterday, has said that “we are uniquely positioned for the return of Christ like no other time in history” as a result of the Supreme Court marriage cases.

Another conservative pundit, Linda Harvey, claimed in an interview with End Times broadcaster Jan Markell that the legal and political success of gay marriage advocates means that “we’re heading into the End Times, and it sure looks like we may be, or the end of America — or both.” 

Michele Bachmann, a frequent guest on Markell’s program, told the End Times evangelist that legal abortion and gay marriage, along with President Obama’s foreign policies, are among the signs that we are entering the Last Days. God will remove his “hedge of protection” from America as punishment for its increasingly “pagan” culture, she warned, and “and we will suffer the consequences as a result.”

4) Flood!

Gay rights advocates are not only turning America into Sodom and Gomorrah (as Pat Robertson claims), but they are also risking the destruction of the planet, argue some far-right pundits who believe that Noah’s Flood was divine punishment for homosexuality. Scott Lively, the pastor best known for his work promoting anti-gay laws in countries like Russia and Uganda, claims that “the Great Flood of Noah in Genesis 6-9 was precipitated by homosexual sin.”

“We need to remember that in the time leading up to the Flood what the rabbis teach about the last straw for God before He brought the Flood was when they started writing wedding songs to homosexual marriage,” Lively said, “and Jesus said that you’ll know the End Times because it will be like the days of Noah. There’s never been a time in the history of the world since before the Flood when homosexual marriage has been open and celebrated, and that’s another sign that I believe that we’re close to the end…. I think this is the issue of the End Times: homosexuality.”

Another pastor claimed God “brought the flood” because he “knew that the people of the earth were going to destroy themselves through same-sex marriage.” Porter has similiarly called gay marriage “the final straw that led to the Flood.”

5) Antichrist!

The destruction of freedom and America at the hands of gay rights advocates, some Religious Right voices warn, will eventually lead to the coming of the Antichrist.

Jeffress said that the purported gay persecution of Christians “will pave the way for that future world dictator, the Antichrist, to persecute and martyr Christians without any repercussions whatsoever,” while Gordon Klingenschmitt, a televangelist and Colorado Republican state representative, called LGBT-inclusive non-discrimination laws a “sign that the End Times are really upon us. When the Antichrist rises up to persecute Christians and behead us and throw us in jail for our Christian faith, you don’t think it’s going to be over things like this?”

Lively explicitly linked the coming of the Antichrist to the marriage cases before the Supreme Court, writing that “if we are on the verge of ‘birth pangs’ we will likely know it by Passover, but in either case we should brace for serious judgment on the United States in the form of natural and/or man-made disaster if the Supreme Court established sodomy as a basis for marriage under our constitution.” The one who will “not yet be exposed to the world as the Antichrist” will emerge around September of this year, Lively wrote, noting that “the Biblically literate would recognize him.”

“Even as the rest of the world lauds its ‘savior’ and embraces his government, the Christian believers (and Torah-faithful Jews) would be increasingly reviled and hunted,” Lively wrote. “I don’t think there is any question, Biblically, that the cultural celebration of ‘gay marriage’ portends judgment from God. The only real question in my mind is whether it truly signals the imminent ‘beginning of sorrows’ or is just another step in the path leading to God’s wrath at a later time.”

Rick Santorum: Supreme Court Marriage Ruling Could Lead To Christians Being 'Persecuted And Maybe Even Prosecuted'

Rick Santorum’s movie studio, EchoLight Studios, issued a press release yesterday in anticipation of today’s arguments in the marriage cases before the Supreme Court, warning that a decision in favor of marriage equality could lead to the persecution of people who reject “the secularism that is now coming from the government.”

In the press release, Santorum warns that those “who want to live their life consistent with biblical teachings are not being given space to do that."

"It is an increasing view that if you are not with this new orthodoxy, the secularism that is now coming from the government, that these are the values that the government values. If you don't live up to those values, well then you can be persecuted and maybe even prosecuted for doing so," he added.

Supreme Court will begin hearing arguments to determine if same-sex marriage should be nationally recognized in the United States starting April 28. The outcome of these hearings, set for late June, could cause a potentially damaging ripple effect for conservative business owners who, based on their personal religious beliefs, do not want to participate in same-sex wedding ceremonies as was explored in the award-winning EchoLight Studios documentary, "One Generation Away."

"One of the biggest changes in this country in the last four or five years is the level of hostility rising toward people of faith taking public viewpoints in their business or in the public square, even in schools and the military," said Former Senator and EchoLight CEO Rick Santorum. "Those who want to live their life consistent with biblical teachings are not being given space to do that. "

The backdrop to the Supreme Court holding this hearing is a number of high-profile cases of Christian business owners being forced by the government to provide services for same-sex weddings. As highlighted in "One Generation Away," which was released last September, there is a growing understanding that the redefinition of marriage cannot be separated from a loss of freedom.

"It is an increasing view that if you are not with this new orthodoxy, the secularism that is now coming from the government, that these are the values that the government values. If you don't live up to those values, well then you can be persecuted and maybe even prosecuted for doing so," concluded Santorum.
 

Peter LaBarbera Is 'Hoping And Praying' For A 'Constitutional Crisis' On Marriage

Peter LaBarbera of Americans for Truth About Homosexuality said last month that he is “hoping and praying” that if the Supreme Court strikes down state bans on same-sex marriage, enough states will follow the lead of Alabama Chief Justice Roy Moore in defying the decision that it will “create a constitutional crisis.”

Calling Moore “a national hero,” LaBarbera told South Carolina pastor Kevin Boling on his “Knowing the Truth” radio program that while “the judicial system has largely sold out to the homosexual activist movement,” Moore has at least “tried to put [on] the brakes.”

“I’m hoping and praying that some state somewhere, more than one, many states will say ‘no’ if the Supreme Court decides to pull a Roe v. Wade on homosexual so-called marriage, which would be to nationalize it or attempt to nationalize this ridiculous homosexual marriage movement,” he said.

“If it is nationalized in June or whenever that decision from the Supreme Court comes down,” he added, “I’m hoping that there is, that this creates a constitutional crisis and states fight back like what’s going on in Alabama.”

Boling also asked LaBarbera the question that many Republican presidential candidates have been facing: Would he go to a gay or lesbian couples’ wedding?

Boling offered that he “absolutely” would not, and LaBarbera agreed, noting that he also would not go to the wedding of someone who had previously been divorced.

“I agree with you, Kevin, with one caveat. I guess the same should also apply if the guy is on his third trophy wife, we shouldn’t go to that wedding either,” he said.

This led LaBarbera to discuss how marriage equality is “one of the true evils of the homosexual activist movement” because it is trying to “change perversion by wrapping it in something that’s good.”

“I mean we’re talking about one of the true evils of the homosexual activist movement,” LaBarbera told Boling, “which is the wedding — pardon the pun — of perversion with the sacred institution that is meant to be the picture of our relationship with Jesus Christ. That is wicked.“
 
He cautioned that it’s not just the “extreme form” of the LGBT rights movement that is evil because “the so-called conservative end, which is basically domesticated homosexuality…is also evil.”

“It’s like taking an old, beat-up desk that’s full of stains and scratched and putting a thin veneer on top of it and then saying, oh look this is a great desk. You cannot change perversion by wrapping it in something that’s good,” he said.
 

 

Are Conservative Justices Suggesting that Oppression Justifies More Oppression?

Historical discrimination against gays and lesbians warrants heightened scrutiny under Equal Protection, not continued discrimination.
PFAW Foundation

In Marriage Arguments, Scalia Overlooks the People's Role in Adopting Equal Protection

Scalia says judicial interpretations of Equal Protection bypass the people, but it was the people who chose to constrain themselves with Equal Protection.
PFAW Foundation

Justice Ginsburg Tackles Idea That Marriage Definition Has Existed For Millennia

One of the words being bandied about at this morning's oral arguments in the marriage cases was "millennia." One of the anti-equality side's main talking points is that equality proponents are asking the Justices to "redefine marriage," as if marriage has been static in nature for time immemorial. Justice Kennedy raised this issue early in oral arguments. As reported in the Washington Post:

10:06 a.m.: Justice Anthony M. Kennedy, who is believed to be the deciding vote in this case, quickly jumped in with a question about the long-standing view of marriage as between two members of the opposite sex. "The word that keeps coming back to me is ‘millennia,' " he said.

Same-sex marriage has been legal in the United States for only about a decade, since Massachusetts legalized it in 2006, Kennedy said. "I don't even know how to count the decimals," he said. "This definition has been with us for millennia."

Perhaps no one is better qualified to tackle this aspect of the case than Justice Ginsburg. As live-blogged by SCOTUSBlog:

One seemingly striking moment came when Justice Ginsburg spoke of how it was recent changes to the institution of marriage that made it appropriate for gay and lesbian couples -- in particular, it becoming an egalitarian institution rather than one dominated by the male partners who determined where and how the couple would live.

Indeed, the idea of marriage as the voluntary union of two lawful equals is hardly one that goes back millennia, or even to our nation's founding. For much of American history, women who got married actually lost their civil identities as individuals, being seen in the eyes of the law only as the wives of their husbands, who had all the legal rights. In the 19th century, it was considered a major reform to allow a woman to keep her own property in her own name after she married, rather than having it automatically transfer to her husband. A more recent reform is that a wife is not automatically considered to have given consent to her husband for sexual intercourse.

Marriage as it is practiced in our country is hardly millennia old. Much of what defined marriage in U.S. history would today be struck down as violating the rights of women under the 14th Amendment. When a New York court in the 1980s struck down that state's rape exemption that allowed men to rape their wives, the judge opened his opinion with quotation from John Stuart Mill's 1869 essay The Subjection of Women: "Marriage is the only actual bondage known to our law. There remain no legal slaves, except the mistress of every house."

But the court that struck down the spousal rape exemption more than a century after that was written was not engaged in an illegitimate "redefinition" of marriage. It was simply enforcing the 14th Amendment, as the Supreme Court is being asked to do today.

This post originally appeared on the blog of People For the American Way.

Justice Ginsburg Tackles Idea that Marriage Definition Has Existed for Millennia

Marriage as it existed for much of our nation's history violates the 14th Amendment, as does today's exclusion of same-sex couples from the institution.
PFAW Foundation

Bryan Fischer: Gay 'Supremacists' Will 'Brainwash' Kids, 'Want It To Be Gay Rights Über Alles'

Yesterday on “Focal Point,” Bryan Fischer got heated during a rant about Justice Anthony Kennedy, whom he believes will tip the balance in favor of marriage equality advocates at the Supreme Court.

“I got worked up about that but that just tees me off, I cannot tell you the level of aggravation that I got that this thing is even before the Supreme Court, let alone that one man, one man, is going to be allowed to tyrannically dictate to everybody else in America what our definition of marriage ought to be,” Fischer said. “It’s inexcusable, it’s reprehensible, it’s obscene, it’s vulgar to a level that I cannot even begin to put into words.”

Later in the program, Fischer chatted with a caller who spoke about the “little children being indoctrinated in the public schools by this filthy homosexual agenda.”

Fischer claimed that parents don’t realize that “your children will be indoctrinated into the homosexual agenda in grade school” if gay marriage becomes legal.

“Your children will be brainwashed, they will be indoctrinated into the entire homosexual agenda,” he declared. After blasting homosexuality as a “sexual abnormality and sexual perversity,” Fischer said that gay rights advocates “are not even really about equality, they are about supremacy. They want it to be gay rights über alles, they want gay rights to supersede any right to religious liberty.”

Religious Right Activists: God Will Punish America For Gay Marriage

American Family Association official Sandy Rios and Liberty Counsel attorney Harry Mihet agreed yesterday that a Supreme Court ruling in favor of marriage equality could usher in divine wrath upon America.

Discussing the Supreme Court marriage cases on Rios’ American Family Radio program, Mihet warned that a decision striking down state-level bans on gay marriage would be a “sledgehammer that the homosexual lobby is going to use to tear down any and all resistance that still remains to the movement, beginning with the church and people of faith.” Rios agreed, saying that Christians in America must prepare to “lose their livelihood” over the issue.

The two berated their fellow Christians who are not fighting against gay marriage, saying that their “silence” on the issue is inviting God’s wrath.

“When I look at the response of the church in this situation and the silence, I really sometimes think, often, that this is God’s doing too, that he must bring judgment because he’s a just God and he must judge his own people,” Rios said. “I just feel God’s supernatural hand in all of this, as much as I dread it, it just seems like a just God is going to have to allow his people some suffering in order to sort them out.”

Mihet said that God is “giving people over to their evil desires” who will then suffer the consequences of their “evil choices.” “God is going to allow us to experience all of what it means to unravel the natural definition of marriage and the institution that has been at the base of our society for so long,” he warned.

Janet Porter: Supreme Court Marriage Ruling Could Land Christians In Jail

After holding a press conference yesterday to promote her “restraining order” campaign to stop the federal courts from ruling on marriage cases, Faith 2 Action’s Janet Porter took a few minutes to speak with far-right pastor Wiley Drake about the effort.

Porter told Drake that the things she predicted in her 2005 book "The Criminalization of Christianity: Read This Book Before It Becomes Illegal!” are coming true, and that if the Supreme Court rules in favor of marriage equality, Christians will have to choose between obeying the ruling and going to jail.

“I’m telling you that if the court dares to issue another Roe v. Wade, in this case the Roe v. Wade for marriage, we will not obey it,” she said. “We’ll go to jail if we have to go to jail, but we will not bow to this agenda and violate our beliefs in God.”

“It’s happening in the state of Idaho,” she claimed. “They’re going after pastors in Idaho right now and saying, ‘Unless you oversee, participate in a homosexual wedding, we’re going to put you in jail.’”

Porter was referring to a case in Couer D’Alene in which the owners of a for-profit wedding chapel filed a lawsuit claiming that they could face decades of jail time for refusing to perform same-sex marriages, which did not turn out to be at all true.

This isn’t the first time that Porter has warned that advances in LGBT equality will land Christians in jail. In 2009, Porter warned that an LGBT-inclusive hate crimes law would send “ pastors to prison for biblical positions and speech,” a prediction that nearly six years later has not come to pass.

Pat Robertson: Gay Marriage Will Lead To God's Wrath, Turn US Into Sodom

Today on “The 700 Club,” Pat Robertson warned that if the Supreme Court strikes down bans on same-sex marriage, Christians in America will soon be “the victims of vicious, vicious attacks,” just like the angels who visited Sodom and were nearly raped by “virulent homosexuals.”

“The angels said to Lot, ‘Get your family out of here because judgment has come down on this town,’ and the fire of God fell on it and Sodom and Gomorrah were extinguished and Lot and his family were barely able to get out to a higher mountain away from the holocaust that ensued,” Robertson said. “Ladies and gentlemen, we are getting to a point not to accept homosexuality, but homosexuals are now in the ascendency where they are persecuting those who disagree with them.”

Robertson said that America is now turning into Sodom: “I warned about this years and years ago that it was going to happen and it did, it has. What’s next? What’s next is what happened to Sodom and Gomorrah. It is just a question of how soon the wrath of God is going to come on this land.”

Concerned Women For America: Gay Marriage Persecutes Christians

The conservative activists of Concerned Women for America are using familiar right-wing talking points to criticize same-sex marriage rights.

The group’s legal analyst Mario Diaz took to Breitbart yesterday to warn of the possible “criminalization of Christianity” and “the persecution of Christians”:

All the evidence to the contrary, if the Justices still insist on imposing same-sex “marriage” on the nation by judicial fiat, they should also consider the ramifications of such a reckless decision. They will be effectively opening the door to the criminalization of Christianity. At the very least, they will be kicking the door wide open to the persecution of Christians (and other religious groups) who believe marriage to be an institution created by God, which they cannot re-define of their own accord. Christians simply have no choice in the matter.

Therefore, if the Supreme Court magically produces a requirement on the states to support a policy in direct conflict with people of faith, the question is how much pressure is the state going to put on those people to comply with the Constitutional requirement it must now uphold.

As “evidence” of the supposed threat to liberty posed by marriage equality, Diaz cites the termination of Atlanta’s fire chief for distributing to employees as self-published book that included condemnations of homosexuality. He neglects to mention that in Georgia, where this took place, gay marriage is still illegal.

Diaz also cites cases in Oregon and New Mexico involving bakery owners and a photographer who were found to have violated their states’ non-discrimination laws in turning away gay and lesbian couples. Both of those cases also took place before the states legalized gay marriage. 

Penny Nance, the group’s CEO, similarly warned in a press release this morning that if the Supreme Court issues a pro-equality ruling, people of faith will be “forced into submission”:

The issue of marriage is at least as controversial as abortion because, aside from taxpayer funding, which is an entanglement, no one is advocating that people of faith participate unwillingly in someone else’s abortion. If advocates for the redefinition of marriage have their way, people of faith will not only be forced to actively participate — at least via commerce — they will also be penalized by loss of job or other sanctions if they don’t. You see, it’s not enough for them that I tolerate their position. Christians, Muslims, Orthodox Jews, and others are to be forced into submission and complicity. And this is the one thing we can never give you. James Madison said, “Conscience is the most sacred of all property.” We can love you. We can support you as you navigate life. But we cannot — and will not — ever betray our consciences on this or any other matter.

Rick Scarborough: We Need An Anti-Gay Martin Luther King, Jr.

Writing today in WorldNetDaily, conservative pastor Rick Scarborough once again compared support for gay rights to past public approval of segregation, insisting that he nonetheless believes “that the majority of Americans know in their hearts that homosexuality and same-sex marriage are morally wrong.”

Gay marriage, Scarboroguh wrote, will lead to the end of “religious freedom and freedom of speech,” if not the end of America itself.

Scarborough added that he and “millions” of other opponents of gay rights are prepared to “respectfully refuse to acknowledge” a Supreme Court ruling on marriage rights that they disagree with: “In the spirit of Dr. Martin Luther King, we will view any attempt to enforce such a ruling as unjust, and our duty to the Constitution, more importantly, our duty to our God, will force us to disrespect it.”

I’m not surprised that some recent polls have shown that a majority of Americans now say they approve of same-sex marriage. We have heard a steady drumbeat for the past decade of a one-sided national discussion on the subject. But there was also a time when the majority of Americans approved of separate restrooms and classrooms for our fellow black American citizens. The majority is not always right.

When considering the outcomes of polls on this issue, one must ask, “Who wants to be labeled a bigot for declaring what their heart truly believes about sodomy and ‘alternative lifestyles’?” I believe that the majority of Americans know in their hearts that homosexuality and same-sex marriage are morally wrong.



Attempts to redefine marriage are a rejection of God and the Bible. The genius of America and religious freedom is – you don’t have to accept or believe any of what I have just written. You can choose to reject it all and make your own alternative truth.

But you cannot change what God has spoken and verified in nature. Many have tried, and history documents their folly.

In the past, stating such a position was known as practicing religious freedom and freedom of speech, both constitutionally protected rights – rights which of necessity will be sacrificed if the high court approves same-sex marriage.

To the members of the Supreme Court I say: There are tens of thousands of people of faith, in fact, hundreds of thousands, if not millions, whose faith and conscience will not allow them to respect any decision that fundamentally rejects their God, His Word and the natural order. If a majority of the court redefines marriage, thousands of Christians will respectfully refuse to acknowledge such a ruling has jurisdiction over their lives.

In the spirit of Dr. Martin Luther King, we will view any attempt to enforce such a ruling as unjust, and our duty to the Constitution, more importantly, our duty to our God, will force us to disrespect it.

Staver: Impeach Supreme Court Justices Who 'Go Off The Farm' On Marriage

In an interview with Iowa-based conservative talk radio host Steve Deace on Friday, Liberty Counsel founder Mat Staver said that he supported Sen. Ted Cruz’s bill to strip federal courts of jurisdiction over marriage cases, but added that he also doesn’t think it’s a “state right” to rule on the issue.

“Same-sex marriage is not a state right, any more than it a right of the United States Supreme Court or the federal courts to do this,” he said. “It’s no more a states’ rights issue than is changing the natural created order of anything.”

“For example,” he continued, “slavery is not a states’ rights issue…No, the issue of slavery is something that transcends state borders. I don’t all the sudden become confused about male and female when I drive into California from a neighboring state of Texas. It’s the same in California as it is in Texas, as it is in New York, as it is in Iowa, everywhere around the world has been the same. It is not the right of the state, any more than it is the right of the federal courts or the Supreme Court to redefine the natural created order of marriage.”

Staver told Deace that “there’s a lot of remedies” Congress can pursue to “rein this out-of-control judiciary back to its intended purpose,” including dissolving lower federal courts that rule in ways lawmakers dislike on marriage and impeaching Supreme Court justices who “go off the farm” on the issue.

“There’s only one court that’s ever required by the United States Constitution,” Staver explained, “the Supreme Court of the United States. No other lower federal courts of appeals or district courts are required, they’re at the will of Congress. Congress created them, Congress can do away with them.”

“Congress, as this particular piece of legislation is proposing, can limit their jurisdiction,” he continued.
“Congress can also impeach justices of the United States Supreme Court that go off the farm. They should exercise the right of impeachment when these justices or judges become legislators, activists, ideologues rather than umpires calling the shots as the balls and strikes goes over the plate. When they do that, they need to exercise their authority to impeach.”

“When the people lose trust in the courts, the courts lose their authority,” he added. “Congress can simply resist these unjust laws coming from these courts and reign this out-of-control judiciary back in its intended position.”

PFAW Telebriefing Unpacks Legal Issues and Real-World Implications of Marriage Cases

As the Supreme Court prepares for arguments about the right to marry, PFAW Foundation Senior Fellow Jamie Raskin says our country may be “on the verge of a historic breakthrough.”

On Thursday, PFAW hosted a telebriefing for members and supporters on this historic moment in anticipation of oral arguments in the Supreme Court marriage cases (Obergefell v. Hodges) next week. PFAW Executive Vice President Marge Baker moderated a conversation among affiliate PFAW Foundation Senior Fellows Jamie Raskin and Elliot Mincberg as well as People For supporters who called in to join the discussion.

In the telebriefing, Raskin and Mincberg unpacked some of the questions before the court — not only whether states can prohibit same-sex couples from marrying or refuse to recognize marriages from other states — but also the implications of the various types of reasoning the justices may use to reach their decision.

They also reflected on the remarkable social transformation our country has seen on the rights of LGBT people. Raskin remembered that the 1986 Bowers v. Hardwick decision, which upheld the criminalization of “sodomy,” came out while he was in law school. With the Court’s steady march away from that kind of legal reasoning, he said, “there’s no going back from here.”

Mincberg pointed out that, unfortunately, the backlash has started before the Supreme Court even decides the cases. With “right to discriminate” legislation pending in more than a dozen states and a handful considering “marriage refusal” bills, it’s clear that the far Right is already forging ahead with a nationwide push to undermine the expanding rights of LGBT Americans.

Call participants shared some great questions and opinions, including a retired pediatric doctor who asked why the principles accepted by the medical community to take care of your patients rather than question or judge them have not been accepted by the political community as well.

Listen to the full telebriefing here:

PFAW

Anti-Gay Activists Warn Supreme Court of 'Tyranny' & God's 'Wrath Upon America' Following Marriage Decision

In a press conference today in front of the Supreme Court, Faith 2 Action’s Janet Porter gathered a who’s who of radical anti-gay activists and “ex-gays” to deliver “restraining orders” to the Supreme Court demanding that the justices not hear arguments on the constitutionality of same-sex marriage bans.

Far from a far-right pipe dream, Porter’s bill to block federal courts from ruling on marriage was introduced last week by Rep. Steve King in the House and Sen. Ted Cruz in the Senate. “We have appealed to Congress to restrain the judges, and the good news is Congress has heard our cry,” Porter said.

The activists, including Scott Lively, Peter LaBarbera and Bill Owens, also announced that they were filing a motion asking Justices Ruth Bader Ginsburg and Elena Kagan to recuse themselves from the case because they, in Lively’s words, “deliberately officiated at so-called homosexual wedding ceremonies.”

Ginsburg and Kagan, Lively charged, “have committed an unparalleled breach of judicial ethics by elevating the importance of their own favorite political cause of gay rights above the integrity of the court and of our nation.”

Porter distributed to attendees copies of her new anti-gay documentary “Light Wins,” which features a number of GOP politicians and conservative activists claiming that the institution of equal rights for LGBT people will lead to the “criminalization of Christianity,” a theme heard throughout the press conference.

Greg Quinlan, an “ex-gay” activist, echoed the Family Research Council’s Tony Perkins , saying a Supreme Court decision in favor of marriage equality “will bring open season on Torah Jews and biblical Christians, and it will definitely bring open season on those of us who left homosexuality.”

Steven Hotze of Conservative Republicans of Texas, a Roy Moore acolyte who has been advocating for a bill in his state barring the use of funds to issue marriage licenses to gay and lesbian couples if the state’s marriage ban is struck down, declared that gay marriage is “not a marriage, it’s a mirage, because it’s counterfeit, it’s a lie, it’s untrue.”

A decision in favor of marriage equality, he warned, “would force individuals to have to condone, accept, even celebrate sexual immorality among certain elements of the population and teach it to the children.”

“It would criminalize Christianity,” he added. “The pastors would be forced to have to marry those of the same-sex.”

Peter LaBarbera, the head of Americans for Truth About Homosexuality declared that the Supreme Court is “poised to nationalize a historical anomaly, so-called marriage based on a sexual perversion, as a constitutional right.”

“A nation cannot simultaneously honor God and codify sexual sin as a supposed civil right,” he said, adding that “apparently the ‘T’ in LGBT stands for ‘tyranny.’”

Bill Johnson, a former state official with the American Family Association who now runs the American Decency Association, warned that a decision favorable to marriage equality would invite God’s "wrath upon America:

Meanwhile, Wiley Drake, a pastor who has prayed for President Obama’s death, was filming the whole event, at one point turning around to tell reporters that America has a Christian “birth certificate.”

“Our nation has a birth certificate. The president doesn’t, but our nation does.”
 

Scalia and Roberts Don’t Know Best: Here’s How We Take Our Politics Back from Reactionary Court and Billionaire Donors

This piece, by PFAW Senior Fellow Jamie Raskin, was originally published by Salon.

If you take away Prohibition (the 18th Amendment) and its repeal (the 21st), most of our constitutional amendments since the original Bill of Rights have expanded the voting rights and political equality of the people.

Our post-Reconstruction amendments have abolished slavery (the 13th), provided for equal protection of the laws and required reduction of states’ congressional delegations if they disenfranchise eligible voters (the 14th), denied states the power to discriminate in voting based on race (the 15th) and shifted the mode of election of U.S. Senators from the legislatures to the people (the 17th). They have passed woman suffrage (the 19th), given residents of the federal district the right to vote and participate in presidential elections by casting electors (the 23rd), abolished poll taxes in federal elections (the 24th) and lowered the voting age to 18 (the 26th).

Moreover, many of these amendments have directly responded to Supreme Court decisionsdenying the political rights of the people.  For example, the 19th Amendment overturned the Court’s decision in Minor v. Happersett (1875), which held that Equal Protection did not protect the right of women to vote, affirming precedents finding that women’s proper place is in the domestic sphere.  Similarly, the 24th Amendment banning poll taxes in federal elections overturned the Court’s 1937 decision in Breedlove v. Suttles upholding such taxes.

But if you listened only to some of my colleagues in the legal establishment, you might never know that our unfolding Bill of Rights is a dynamic chronicle of the democratic struggles of the people for participatory political equality nor would you know that the people have often had to override reactionary decisions of the Supreme Court in the process.

A lot of lawyers today react with horror to U.S. Reps. Marc Pocan and Keith Ellison’s excellent push for a constitutional amendment to establish an affirmative and universal right to vote against recurring state efforts to disenfranchise people.  And a lot of academics were aghast last summer when every Democratic United States senator supported a constitutional amendment to reverse Citizens United, McCutcheon v. FEC (2014) and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011).

The amendment, backed by the vast majority of Americans and a surging national campaign that 16 states and more than 650 cities and towns have joined, would restore the people’s power to stop CEOs from spending corporate treasury wealth on political races, to impose reasonable campaign finance limits such as caps on aggregate contributions, and to develop public financing laws with matching grants that help empower poorer candidates to be heard over the roar of big money.

Yet we are constantly invited to believe that, however much big money comes to dominate our politics and control public policy, we must never touch our Constitution. It must be hidden away in the attic where it will be tended by wise Supreme Court justices and law professors who know that the people’s constitutional values will always be inferior to those of the judiciary and the experts.  This attitude betrays our progressive democratic heritage and Thomas Jefferson’s important warning:

Some men look at constitutions with sanctimonious reverence, and deem them like the arc [sic] of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment . . . . But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.

The country’s most prolific voting rights scholar and blogger, Richard Hasen—a colleague and friend of mine—is the most recent legal academic to pour cold water all over the movement for a constitutional amendment to rebuild the statutory wall protecting democratic elections from the flood of plutocratic and corporate wealth.  This is the wall that has been mostly demolished by the Roberts Court in both Citizens United and the McCutcheon decision.

While Citizens United turned every corporate treasury in the country into a potential political slush fund, McCutcheon wiped out all aggregate limits on federal campaign contributions so that tycoons can now max out to every incumbent Member of Congress–plus all their opponents!  The top half of the top 1 percent can now pretty much bankroll all federal campaigns, which is one reason why run-of-the-mill Republican millionaires and bundlers are complaining to the Washington Post that they have been bypassed in the nation’s wealth primary by “multi-multimillionaires and billionaires.” The bottom half of the top 1 percent is getting a sense of what it is like to be a political spectator in the country’s exclusionary wealth primary.

The Post also reports that public anxiety about plutocracy is becoming a key issue in the presidential election—not just among Democratic activists for whom it is “red meat,” according to Professor Hasen, but for Republicans and Independents too—pretty much everyone who lacks the strategic advantages of Sheldon Adelson and the Koch brothers. Earlier this month, Republican Sen. Lindsey Graham also pointed to the need for a constitutional amendment to fix the damage done by Citizens United.  Indeed, if you don’t think the accelerating takeover of our politics by big money affects public policy in the real world, you may or may not be an academic, but you are definitely too innocent to be let out of the house by yourself.

In launching her 2016 campaign, Democratic presidential candidate Hillary Clinton declared a “big fight” to fix “our dysfunctional political system” by getting “unaccountable money out of it once and for all, even if it takes a constitutional amendment,” and I say good for her. Given Clinton’s legislative and political experience and her own prodigious navigation of our money politics, she obviously knows how the Roberts Court’s magical transformation of for-profit business corporations into political membership groups has completely distorted politics in the Citizens United era.  Of course, some of the Republican presidential candidates are charging her with hypocrisy for seeking to change the plutocratic political system that shapes her campaign, along with everyone else’s, and sullies everyone who touches it.  But this is predictable and pedestrian.  The nihilistic enemies of reform prefer nothing systemic to change just so long as they can keep denouncing Hillary Clinton.

Thankfully there is no talk of hypocrisy in Hasen’s critique, but still all Clinton gets from him is a lot of negative energy.  First, he faults her for not trying to fix “the nation’s disclosure laws,”  which is strange because she supported the Disclose Act, which U.S. Rep. Chris Van Hollen introduced and which Republicans killed, and she has always championed disclosure.  It is also strange because Clinton is clearly treating a constitutional amendment as a last resort in a struggle against a runaway faction of five plutocrats on the Supreme Court.  If I am reading her correctly, Clinton wants unaccountable corporate money—which is now spent by CEOs in our political campaigns on a secret basis and without any consumer, shareholder or citizen control over it—to be subject to public regulation “even if it takes” a constitutional amendment. That doesn’t sound so reckless to me.

For Hasen, it seems sufficient to work for years or decades to mandate disclosure of the billions of dollars in corporate money coursing through the veins of the body politic, and then leave things at that.  He is afraid that actually restoring the power of Congress to impose “reasonable” and viewpoint-neutral limits on corporate political expenditures would be subject to an effective judicial veto through reinterpretation by “a conservative majority on the Roberts Court” and therefore useless.  Well, it is also the case that the addition of the words “equal protection” to the Constitution were effectively nullified through reinterpretation by a Jim Crow Supreme Court between Plessy v. Ferguson (1896) and Brown v. Board of Education(1954).  But does that make passage of the Fourteenth Amendment a bad idea?  The Supreme Court has been a conservative and reactionary institution for most of our history, but that is precisely the reason for the people to write our Constitution in a way that advances and protects strong democracy. Having the right constitutional language in place may not be sufficient to constrain the reactionary elitism of the Supreme Court, but it is certainly necessary.

If we just wait around for new justices to change things and fail to directly engage this constitutional question in the public arena, we can expect to see the few remaining bricks of campaign finance law flattened by the Right and the Court, including base limits on individual  contributions, the Tillman Act’s century-old ban on corporate contributions to federal candidates, the rules against “coordinated expenditures” between candidates and independent spenders, and the limits in 29 states on making campaign contributions during legislative sessions–all of them clearly at odds with the absolutist dogmas of the Right: that political money is political speech, that business corporations are First Amendment-protected political (and religious!) associations, and that the only kind of political corruption we can acknowledge and regulate are quid pro quo transfers tantamount to bribery.

But Hasen, finally, calls a constitutional amendment a “political nonstarter” because of the difficulties of passage.  But here he ignores not only the success that popular movements have had in inscribing democratic values in the Constitution throughout our history, but also the way that serious constitutional movements can reshape the terrain of American politics with or without final passage and ratification.  For example, the heroic movement for the Equal Rights Amendment in the 1970s not only led to widespread adoption of state constitutional amendments and significant federal statutory changes advancing the equal rights of women but also helped shock the Supreme Court into action to apply “heightened scrutiny” to official gender-based discrimination under Equal Protection doctrine.  Constitutional movements can change the mind of the Court.

Whether or not we summon up the two-thirds of Congress and three-fourths of the states needed to pass a strong new anti-plutocracy amendment, the movement for such an amendment is essential to change the degraded assumptions of the Citizens United era.  It will open up space for revival of the Disclose Act, for consideration of the “Shareholders United” legislation that I and other legislators have been advancing at the state level, for progress for small-donor plans like Congressman John Sarbanes’ Government By the People Act, and for an honest debate about Citizens United, which turned on its head two centuries of conservative understanding of what a corporation is.

Even if the best we can hope for is some modest new disclosure rules and a few new Supreme Court justices who tilt towards democracy over plutocracy, as Hasen advises Hillary Clinton, these outcomes are far more plausible and likely with a lively popular constitutional movement on the ground than the defeatist attitude that the Supreme Court always knows best.

PFAW

Tony Perkins Just Lies On 'Face The Nation,' Insists He Never Called For SCOTUS Impeachment

Time and time again, conservative figures have one message for right-wing media outlets and a completely different one for the mainstream press. Tony Perkins, the Family Research Council president, gave us the latest example of this phenomenon during an appearance on “Face the Nation” this Sunday to discuss the upcoming Supreme Court marriage case.

Last week, as we first reported here on Right Wing Watch, Perkins told conservative Iowa radio host Jan Mickelson that a Supreme Court ruling in favor of gay marriage rights would lead to “open season on people of faith" and agreed with Mickelson's suggestion that Supreme Court justices who vote in favor of marriage equality be impeached.

But when Schieffer asked Perkins about those comments on Sunday, he had a very different answer, flatly denying that he had ever called for the impeachment of justices who favor marriage equality.

Via RawStory:

Unfortunately for Perkins, we have the audio of him saying exactly that.

After Mickelson went on a rant about how Congress should attempt to strip the court of its jurisdiction on marriage and “impeach [their] sorry keisters,” Perkins responded: “I don’t disagree with you, I think you are absolutely right.”

In fact, Perkins has also predicted that there will be a full-scale revolution if the Supreme Court strikes down bans on same-sex marriage.

Marco Rubio: 'Ridiculous And Absurd' To Believe Gays Have Constitutional Right To Marry

While his campaign touts his outreach to gay Republicans, Florida Sen. Marco Rubio told David Brody of the Christian Broadcasting Network this weekend that anyone who believes that gay people have a constitutional right to marriage have a “ridiculous and absurd reading of the U.S. Constitution.”

“There is no federal constitutional right to same sex-marriage,” Rubio said, before criticizing gay rights advocates for supposedly trying to shut down debate over the issue.

It doesn’t exist. There is no federal constitutional right to same sex-marriage. There isn’t such a right. You would have to really have a ridiculous and absurd reading of the U.S. constitution to reach the conclusion that people have a right to marry someone of the same sex. There is no such constitutional right. Can a state decide to change their laws? Yes, but only through the political process, not through the court system and that’s what is happening now.

The advocates of same-sex marriage refuse to go to the legislatures because they can’t win that debate, they don’t want to have a debate in society. They want courts to impose it on people and they are not even satisfied with that. They have now gone further. They want to stigmatize, they want to ostracize anyone who disagrees with them as haters. It’s very simple. This is not a policy against anyone. I believe, as do a significant percentage of Americans, that the institution of marriage, an institution that existed before government, that has existed before laws, that institution should remain in our laws recognized as the union of one man and one woman.”
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