In December, Liberty Counsel head Mat Staver told conservative radio host Janet Parshall that a Supreme Court ruling favorable to marriage equality “could cause another civil war” or even a second revolution. While speaking to Parshall last week, Staver argued that the court’s decision would have “a catastrophic consequence” for freedom, liberty and even “human existence” itself.
The Liberty University law school dean, who said that Obama will introduce “forced homosexuality,” went on to say that the Supreme Court’s decision could lead to civil and criminal penalties for opponents of same-sex marriage, such as losing one’s job. As a result, anti-gay activists “cannot acknowledge that decision as being a legitimate one” and should treat the Supreme Court as “an illegitimate institution.”
If the court goes the wrong way within the next week on these issues, it will become an illegitimate institution and we should treat it as such. It is that dire. It is exactly as simple and as plain as you said it: God said marriage is between one man and one woman, and some civil institution says no it’s not. That has a catastrophic consequence for our religious freedom, for the very function of the family, for marriage, for our human existence, for civil society and for any area of our liberty, it is a catastrophic game changer and it will be more destructive than Roe v. Wade. Why? Because Roe v. Wade, as destructive as it is and it is destructive, does not force you to have an abortion. Now Obamacare is forcing us now to fund abortion. But this will not just simply say, ‘ok same-sex marriage, I don’t agree with it but I can go on and live my life,’ no. You want to work in the DOJ? You’ve got to support it. You want to work in any other area? You’ve got to endorse it. This will not be coexistence, this will not be the government’s got a bad policy, this will be the government’s got a bad policy but you must advance it, you must support it; if you don’t, you will be punished, you won’t have your job, you will be punished in some other civil or even criminal way. That’s why it’s going to be more coercive than Roe v. Wade, it is a line—I’m telling you, I’m hoping people understand this—that we cannot cross. If we cross that line, we have to push back; we cannot acknowledge that decision as being a legitimate one.
Rep. Paul Gosar, an Arizona Republican, told Mike Huckabee on Monday that the U.S. should consider a “national referendum” to make voter registration more difficult.
The two were discussing the Supreme Court ruling that invalidated an Arizona law mandating that people registering by mail to vote in the state using a federal voter registration form produce additional documentation to prove their citizenship. The federal form already requires voters to certify under oath that they are citizens. Civil Rights groups worried that the Arizona requirement would disenfranchise low-income voters and jeopardize voter registration drives.
Gosar told Huckabee that the ruling, which found that Arizona’s requirement was preempted by federal law, was “very disappointing,” adding, “We really have to solve this process from the federal level, with regards to either legislation or a national referendum.” It is unclear what he meant by a “national referendum.”
Gosar also lamented that the Department of Justice under Attorney General Eric Holder has “upheld or disdained certain groups’ privileges over others,” echoing Justice Antonin Scalia’s dismissal of the Voting Rights Act as a “racial entitlement.” (Scalia, however, wrote the opinion striking down the Arizona law.)
Huckabee: This morning, the Supreme Court handed down a very significant decision striking down your state’s law regarding voter documentation. Did the ruling surprise you? And what kind of reaction are you hearing from your home state?
Gosar: Well, I mean, they’re disappointed. They cited the supremecy clause, the federal government over the states, and they bypassed what would be legal documentation. I think that’s what’s eluding us is that what, you know, what is being dictated to the states in regard to voter safety. But then you have a federal government that fails to respond, particularly when you look at the Department of Justice under Eric Holder and how they have upheld or disdained certain groups’ privileges over others. I think it’s very disappointing, and it tells me that we really have to solve this process from the federal level, with regards to either legislation or a national referendum.
The Supreme Court issued 7-2 ruling in favor of voting rights today, finding that a restrictive Arizona law requiring that voters show proof of citizenship when registering by mail is preempted by federal law. The court upheld Arizonans’ right to register to vote by mail using a federal form created by the 1993 “Motor Voter” law, which allows voters to certify under oath that they are citizens. Arizonans will not have to submit information that the federal form does not require.
PFAW Foundation joined in an amicus brief in the case, Arizona v. Inter Tribal Council of Arizona, on behalf of its Young People For program.
The Arizona law, which would have required voters to present one of a narrow set of documents proving citizenship in order to register to vote, would have impeded the voting rights of countless Arizonans. As Demos put it:
Many eligible citizens do not possess these narrow forms of documentation required by the law and, of those who do, many do not carry them while conducting their daily affairs. Community-based registration efforts overwhelmingly rely on approaching individuals who did not plan in advance to register at that time or location and who are thus unlikely to be carrying a birth certificate, passport, or other documentation.
Even when a potential registrant does happen to be carrying one of the required documents, logistical hurdles—ranging from an inability to copy documents on the spot to an unwillingness to hand over sensitive identification documents to registration drive volunteers—greatly hinder the ability of community-based organizations to register people in Arizona.
The Supreme Court has yet to issue a decision in the other major voting rights case on its docket this term, the constitutionality of Section 5 of the Voting Rights Act.
As we mentioned yesterday, Concerned Women for America is launching a new campaign to encourage young people to oppose abortion rights and marriage equality. CWA president Penny Nance writes in the Christian Post this week that young people are increasingly supportive of legalizing same-sex marriage because pastors have focused on issues like sex trafficking rather than addressing why gays and lesbians should be barred from marrying.
She urges readers to work towards “thwarting threats to society's foundations and threats to anyone's religious freedom,” warning that if same-sex marriage is legalized then “children, communities, and governments suffer.”
Nance claims right-wing youth will be like David fighting the gay Goliath in the midst of “judicial despots” on the Supreme Court attempting to “redefine God’s law.”
The Supreme Court is reviewing challenges to state and federal laws that define marriage as the union of a man and a woman. Lower courts ruled against these marriage laws, so now the Supreme Court has the opportunity to uphold marriage and return authority for marriage policy to citizens and their elected representatives, or step in as judicial despots and cut the debate short by making a broad stroke ruling. And pastors and conservative politicians are stuck in a game of "Would You Rather?"
• Would you rather address the issue of sex trafficking or marriage? Sex Trafficking.
• Would you rather talk about abortion or the definition of marriage? Abortion.
• Would you rather talk about financial responsibility or marital responsibility? Easy choice.
We are losing battles as Christian conservatives follow their leaders into no man's land -- the land of not actually saying what you believe, where no man is offended because no man actually says anything. The issue of marriage is the perfect example. Many feel it is just too hard to talk about this issue. As it becomes more and more politically incorrect to support marriage only defined as the union between one man and one woman, many have decided to be silent in this area and just focus on other things. "Love," they say.
We all have friends and family who are homosexuals and we love them. We feel for them and we care deeply about their well being. As Christians, our whole belief system is summarized in loving God above all and our neighbor as ourselves. And that is our chief objective.
We know there is a growing proportion of believers who seek to live peacefully in this world yet have a growing realization of their place on today's frontlines. We are unable to feign ignorance any longer, as those who touted 'tolerance', unabashedly refuse to tolerate our belief system.
You and I deserve to have the debate. We'd rather not have the Supreme Court step in and try and decide for a nation how it feels on an issue so important, like it did in Roe v. Wade, forever affecting the ability of states to decide for themselves the public policy best for its citizens. We want traditional marriage preserved and supported in law and culture.
It's time to preach to the choir, because the choir has stopped singing truth and has instead taken up a politically correct tune deafening our culture to the reality of what's at stake. As Martin Luther put it, "If I profess with the loudest voice the clearest exposition, every portion of the truth of God except precisely that little point which the world and the Devil are at that moment attacking, I am not confessing Christ, however boldly I may be professing Christianity."
As Believers we are called not just be a light to this world, but also to be the salt of the earth and preserve our culture by thwarting threats to society's foundations and threats to anyone's religious freedom.
Marriage is the special union crafted as a holy covenant between a man, a woman, and God. Marriage is the only institution by which our children are conceived and the best in which to raise them. Marriage identifies the recognizable authority of a mother and a father who are ordained with the responsibility of rearing the future generation. We could never grant these same responsibilities to two heterosexuals who simply live together because marriage is more than a living arrangement. When the government broadens the definition of marriage beyond its traditional parameters, children, communities, and governments suffer. We are already suffering from a 43 percent out of wedlock birth rate in this nation. Anything that further erodes and diminishes marriage must be avoided for many reasons, not the least of which being the incredible damage wrought on our society.
The time has come to decide whether you will be the David to this Goliath in our culture. Are you willing to sacrifice your time to educate yourself on the statistics that back up our Biblical beliefs? Are you willing to sacrifice your energy to speak truth in love to those who question your beliefs? Are you willing to choose this day whom you will serve?
Whether the Supreme Court rules to uphold the Defense of Marriage Act or not, our mission does not change. We know there is a battle raging, but our 'great commission' with Christ has given us the ability to equip ourselves and be willing to engage. Where the battle rages, loyalty is proved. That one point of loyalty may be different for each of us. It may be marriage, abortion, national sovereignty, religious liberty, fiscal responsibility, support for Israel, or freedom of conscience. Your belief is personal, but your profession of faith must be public. While the Supreme Court, your state, and your local school board can redefine America's laws, they can never redefine God's law. We are willing. Are you?
TO: Reporters and Editors
FROM: Jamie Raskin, Senior Fellow, People for the American Way Foundation
DATE: May 24, 2013
RE: Blockbuster Decisions Coming Soon from the Supreme Court . . .Will Conservative Justices Twist the Constitution to Subvert Equal Protection?
The Roberts Court will soon release major decisions shaping the future of voting rights protection, affirmative action in university admissions, and the rights of marriage for gay and lesbian Americans. In each case, the promotion of equal rights under law in our society is opposed by a conservative agenda that seeks to enshrine inequality in the name of “federalism,” “color-blindness,” or “social tradition.” What is at stake in these cases is whether America continues its journey towards strong and inclusive multi-racial democracy or accepts conservative arguments that undermine constitutional and social progress.
Congressional Protection of Voting Rights versus “Federalism Costs”:
The Voting Rights Act on the Chopping Block in Shelby County v. Holder
In Shelby County v. Holder, conservatives seek to dismantle the essential machinery of modern voting rights protection, which is the pre-clearance procedure for voting changes in covered jurisdictions. This procedure is contained in Section 5 of the Voting Rights Act of 1965, the monumental statutory achievement of Congress in the last century. Chief Justice Roberts, in a near-miss decision on the same subject in 2009, has already expressed the sentiment of his conservative colleagues that the provision now “raises serious constitutional questions.” At oral argument in Shelby County, Justice Scalia offered his view that the Voting Rights Act has become nothing more than a “racial entitlement.” Despite broad bipartisan support in Congress for the Voting rights Act, including Section 5, the conservative legal movement is mobilized for its destruction.
Section 5 obligates covered states and jurisdictions to “pre-clear” changes affecting voting with the Department of Justice or the federal district courts in Washington. This procedure affects states and counties that were the worst offenders against voting rights and has been in place for nearly a half-century. Section 2 of the Fifteenth Amendment clearly gives Congress the “power to enforce” voting rights “by appropriate legislation.” The Court has four times—in South Carolina v. Katzenbach (1966), Georgia v. U.S. (1973), City of Rome v. U.S. (1980), and Lopez v. Monterey County (1999)—rejected invitations by states to declare Section 5 as outside of Congress’ powers under the 14th and 15th Amendments. Thus, Alabama, Georgia, Louisiana, Arizona, Mississippi, South Carolina, Texas, Virginia and later Alaska (along with certain jurisdictions in California, Florida, Michigan, New Hampshire, New York, North Carolina and South Dakota) have had to prove that proposed changes in election laws do not disadvantage minority voters. While the Justice Departments and the courts routinely approve more than 99 percent of submitted plans, the VRA remains a critical stop against laws meant to disenfranchise racial minorities. Hundreds of state plans and thousands of proposed changes have been rejected under the law, preventing a backslide in the project of building a strong interracial democracy.
But the case against Section 5 today turns on neither constitutional precedent nor text nor the facts of political life on the ground, but rather on the talk-show fallacy that a nation which twice elects an African-American president simply cannot contain any states or counties where minority voters face actual barriers to participation. Backing up this non-sequitur intuition are constitutional myths: that Congress has to treat all states and counties the same and cannot distinguish among them based on their records of committing voting rights violations. and that the pre-clearance mechanism in the Voting Rights Act and its “coverage formula” impose far too high “federalism costs” on covered areas (i.e., it allegedly takes too much power from the states). All of these taking points are supposed to justify the Court’s substituting its judgment for that of Congress and to find that Section 5 is no longer a “congruent” or “proportional” remedy, under either the Fourteenth Amendment or the Fifteenth Amendment, for threats to voting rights. But the lower courts in this case reviewed more than 15,000 pages of Congressional findings and testimony and were convinced of the continuing need for preclearance to deal with the disingenuous disenfranchising and diluting schemes in the covered areas, including voter photo ID laws, tightening restrictions on registration and at the polls, and racist gerrymanders.
The arguments against Section 5 appeal to the racial fatigue of Supreme Court arch-conservatives, who are willing to give state legislatures, a majority of which are in conservative Republican hands today, the freedom to restrict voting rights. The pre-clearance procedures of Section 5 are the major obstacle to this goal because they mean that all of the traditional hijinks of Jim Crow politics must be submitted in advance to federal judges or DOJ civil rights lawyers for approval. Rather than placing the burden on African-Americans and other minority voters to find lawyers and make the case against repressive practices after they go into effect, the covered jurisdictions have to affirmatively show that their innovations are not discriminatory or “retrogressive” before the damage is done. As the Supreme Court put it approvingly in South Carolina v. Katzenbach, “After enduring nearly a century of systematic resistance to the Fifteenth Amendment,” Congress chose “to shift the advantage of time and inertia from the perpetrators of the evil to its victims.”
The word “federalism” does not appear in the Constitution, nor does the opaque and mysterious phrase “federalism costs,” which has become the key mantra for the conservatives. At least four Justices—and we’ll see about Justice Anthony Kennedy—appear poised to use these malleable concepts to override the clear enforcement powers that the Constitution explicitly assigns to Congress through Section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth Amendment. Thus, the Supreme Court is on the brink of usurping Congressional power plainly granted by the Constitution by thwarting Congressional decisions to enforce the equal rights of Americans to vote and participate in the political process.
Racial Integration, Inclusion and Diversity versus “Color-Blindness”:
Affirmative Action Walks the Plank in Fisher v. University of Texas at Austin
The ceaseless attack on affirmative action returns again this Term with Fisher v. University of Texas at Austin, a sweeping challenge to a modest use of race and ethnicity in UT’s admissions process that was adopted to correct for continuing weakness in the numbers of minority students on campus. The twist here is that most UT students are admitted through a policy guaranteeing admission to students who graduate in the top 10 percent of their public high school classes. About one-fifth of the class is admitted outside of that race-neutral policy, and affirmative action plays a role in this small part of the process.
Most people thought that the lawfulness of such a policy was settled for at least 25 years in 2003, when the Court decided Grutter v. Bollinger and Gratz v. Bollinger, cases testing the constitutionality of affirmative action programs as practiced, respectively, at the University of Michigan Law School and the University of Michigan’s undergraduate program. The majority upheld the Law School’s “holistic” use of race and ethnicity in the process to promote diversity in the educational experience because all consideration of applicants remained individualized and there were no quotas and no numerical targets used in the selection process. (The University of Texas modeled its law school’s affirmative action program after that upheld in Grutter in 2003.) Meanwhile, the majority invalidated the undergraduate plan because racial or ethnic minority status was quantified and treated as adding bonus points in a rigid numerical weighing system, a process that the Court said leaned towards being a quota system. While rejecting the college plan as a blunt instrument, Justice O’Connor found that the kind of diffuse and holistic use of minority status embodied in the law school program was permissible. She thought such affirmative action would be warranted for a period of what she predicted to be another quarter-century. Given that most public universities remained segregated through the 1950s and 1960s, this seemed like a sensible time-line.
The Grutter decision reaffirmed and updated Regents of the University of California v. Bakke, the 1978 high Court decision which struck down numerical quotas for minority admission but approved the generalized use of race in the admissions process to promote the compelling interest in having a diverse student body. Grutter was met with relief and enthusiasm throughout American academia, in the business sector, by the armed services, and across American society.
Now, once again, conservatives hope to turn the Constitution against the project of equal rights and equal opportunities. The key move is to claim that Equal Protection mandates absolute “color-blindness” and therefore forecloses any conscious efforts to build diversity and inclusion into the educational experience of students. But the history of the Equal Protection Clause demonstrates that its Framers clearly contemplated that government would seek to take account of the racial implications of official discrimination in the past to fashion consciously inclusionary policies going forward.
Equal Protection of the Rights of all Citizens in Marriage versus “Social Tradition”:
United States v. Windsor and Hollingsworth v. Perry
Two significant cases raise the important issue of whether gay and lesbian Americans enjoy an equal right to marry and to enjoy all the rights of marriage. Here, straightforward understandings of Equal Protection clash with an extra-constitutional commitment to the “social tradition” of discrimination against gay people.
One case, United States v. Windsor, deals with the constitutionality of Section 3 of “DOMA,” the 1996 federal Defense of Marriage Act, which provides that the word “marriage” in any federal law or regulation—including the Social Security Act, the Internal Revenue code, immigration law, and more than 1,000 others—shall apply only to the “legal union of one man and one woman as husband and wife.” This sweeping discrimination means that, although hundreds of thousands of gay and lesbian Americans have won and exercised the right to marry in twelve states and the District of Columbia, the rights, benefits, and duties that they should receive as married people under federal law are categorically withheld from them. Under federal law, married couples who are gay are treated as legal strangers to one another and as unworthy of the rights enjoyed by other citizens.
This discrimination has dramatic consequences. The respondent in Windsor, Edith Windsor, was forced to pay $363,000 in federal taxes on the estate she inherited after her wife (and life partner of 40 years) died, since DOMA prevents same-sex spouses from inheriting marital property on a tax-free basis, a benefit that heterosexual couples take for granted. Windsor won a clean victory in the United States Court of Appeals for the Second Circuit, which found that discrimination against gay people triggers Equal Protection “intermediate scrutiny” and that Congress could not even demonstrate a valid, much less an important, interest for defining marriage at the federal level so as to exclude from its benefits thousands of married couples in the states.
The other case taken up by the Supreme Court is Hollingsworth v. Perry, which tests the constitutionality of California’s infamous Proposition 8 ballot measure, which revoked the marriage rights that gays and lesbians had enjoyed in the state under a landmark California Supreme Court decision. Proposition 8 was voided in a broad pro-marriage decision handed down by California United States District Court Judge Vaughn Walker, a decision that was reaffirmed on narrower grounds by the United States Court of Appeals for the Ninth Circuit, which essentially found that California had no rational basis for taking away from its gay citizens the marriage rights that it had previously granted.
Both cases involve government refusing to recognize the equal rights of gay people, either in married couples or couples who want to get married. With DOMA, Congress denied the same equal rights and benefits to gay married people as it offers to straight married people, and with Proposition 8, California actually revoked the marriage rights of gay people and prohibited the legislature from ever restoring those rights. The Proposition 8 proponents even sought to use the measure to annul gays’ and lesbians’ existing marriages without their consent. The discrimination in both cases is plain to see, all of it justified on the grounds of “traditional marriage” and “social tradition.”
The right to get married as a basic civil right has frequently been addressed by the Supreme Court, but the Court has never addressed whether that right extends to gay and lesbian Americans, and the Court could successfully dodge the underlying issue here.
One good possibility is that the Court will strike down DOMA as a naked Equal Protection violation, saying that states need not necessarily extend marriage rights to gay and lesbian residents but that, if states do extend equal marriage rights, the federal government may not discriminate against people who avail themselves of those rights. Pro-marriage forces expecting this result place a high burden of hope on Justice Anthony Kennedy, who has written excellent majority opinions upholding the equal rights of gay and lesbian Americans in Romer v. Evans (1996) and Lawrence v. Texas (2003). But Kennedy may instead decide purely on federalism grounds, potentially providing a fifth vote to strike down DOMA but preventing any pro-equality legal rationale from having a majority that would bind lower courts in the future.
In the California Proposition 8 case, the Court could say that states that give all of the state-law rights of marriage to gay and lesbian citizens cannot withhold from them the title of marriage; this would affect eight states in a similar situation as California. Another possibility, more remote, is that Justice Kennedy would agree to join the moderate-liberal faction in simply declaring that gay people have equal rights to marry, which would mean invalidating discriminatory laws still on the books in the vast majority of states. Conversely, the Court might also say that there is no obligation for California to protect the right of gay and lesbian citizens to marry at all. Or, finally, it could dismiss the whole case on either standing grounds—the Attorney general of California refused to defend Proposition 8, leaving that task to anti-marriage advocates who put the initiative on the ballot—or on the grounds that cert was improvidently granted. There are still many ways to escape the basic issue of discrimination, even though all of the momentum in the states is towards marriage equality and the rationales for discrimination have been collapsing everywhere like a giant house of cards.
Equal Protection versus the Politics of Inequality
As we await the Supreme Court’s decisions in these cases, Americans should not miss the big picture of this constitutional moment. In a society that disenfranchised African-Americans and other minorities for centuries and discriminated openly against racial minorities and the gay and lesbian population, we are living through giant progressive changes in political democracy and voting rights, educational opportunity, and marriage rights for all. Yet, in politics, as in physics, every action creates an equal and opposite reaction, and a huge ideological undertow has formed on today’s Supreme Court, which has replaced the values of the long-ago Warren Court with commitments to corporate power over government and government power over people. What is at stake in these cases is whether the Supreme Court will interpret the Constitution to be the instrument of equal protection for all or will twist it to make it the guarantor of inequality and injustice.
* * * * * * *
Jamie Raskin, a Senior Fellow at People for the American Way Foundation, is a professor of constitutional law at American University’s Washington College of Law and a State Senator in Maryland.
The anti-choice movement has for several years been experiencing a quiet rift over extreme state-level measures would ban all abortions – and in some cases, in vitro fertilization and some forms of birth control – in a head-on challenge to Roe v. Wade. As Personhood USA and Janet Porter gain more and more success in pushing “personhood” and “heartbeat” bills at the state level, national pro-life groups who oppose the laws for strategic reasons find themselves in a bind.
In March, when North Dakota passed a “heartbeat” bill which would ban nearly all abortions in the state and strike directly at Roe v. Wade, it also passed two narrower measures banning abortion based on genetic abnormalities or the sex of the fetus. The national anti-choice group Concerned Women for America praised heartbeat the bill, while Americans United For Life issued press releases that ignored the bill and praised the narrower measures. National Right to Life went even further, actively speaking out against the North Dakota bill and similar “heartbeat” measures in other states.
In an article for the National Catholic Bioethics Quarterly this week, Americans United For Life’s senior counsel, William Saunders, lays out his fears of what would happen if the Supreme Court were given the opportunity to reconsider Roe v. Wade. While he praises the “admirable and inspiring” efforts behind the trio of new abortion restrictions in North Dakota, Saunders warns that a direct challenge to Roe will give the Supreme Court a chance to rewrite their 1973 decision on more solid “equal protection” footing.
Instead, he argues, anti-choice activists should target incremental measures at wearing away the opposition of Justice Anthony Kennedy, who voted to uphold the so-called “partial birth” abortion ban in Gonzales v. Carhart. “Can the statute be fashioned so as to make it as easy as possible for him (and the others) to go the one step (or two or ten) further than Gonzales in restricting abortion?,” he asks.
Taken together, these three laws provide significant food for thought.
While the persistent efforts of pro-life Americans at the state level are admirable and inspiring and must be encouraged, how does one evaluate the wisdom of any particular proposed (or enacted) law? First, I suggest, one must recognize the legal realities—what kinds of statutes will the courts certainly overturn? Of course, this is not to say that the courts should govern this matter. In fact, the usurpation of the political process by courts is, in my view, unconstitutional itself and should be resisted. However, if we know a law will be overturned by a court, we should consider the risk of such a decision. At least one significant risk is that the Supreme Court, in overturning a law, will entrench “abortion rights” more firmly in constitutional jurisprudence, perhaps under an “equal-protection”-based right, as Justice Ginsburg and three colleagues wanted to do in the Gonzales dissent.
Sad as it is to consider, Gonzales was decided by only one vote, that of Justice Anthony Kennedy. The opinion he wrote for the majority, while speaking of the right of the legislature to choose among divided experts in fashioning law and while recognizing that abortion harms at least some women, did no more than uphold the outlawing of one abortion procedure when others were available. Is such a person likely to uphold a ban on all abortions at any point in pregnancy? If so, what rationale for doing so (what basis) is likely to appeal to him? Can the statute be fashioned so as to make it as easy as possible for him (and the others) to go the one step (or two or ten) further than Gonzales in restricting abortion? Might a statute with a ban (or limit) early in pregnancy lead him to “protect” the “abortion right” and vote with Ginsburg and her colleagues in favor of a firm affirmation of a “constitutional” right to abortion? Is it better to move the ball gently, seeking to build momentum for the ultimate reversal of Roe/Doe, or to force the issue with a broad and early ban? While reasonable people can differ on the answers to these questions, the consequences of a possible forty more years of unlimited abortion due to another Casey-like decision by the Supreme Court counsels for very careful consideration of what prudence requires.
Few Americans would argue that they want to see more big money flowing into our political system.
Yet yesterday the Republican National Committee asked the Supreme Court to strike down limits on the total amount an individual donor can contribute to campaigns in a single election cycle, filing an opening brief in what is sure to be a high-profile Supreme Court case. If the RNC and the Republican donor who together filed the case in Shaun McCutcheon, et al. v. Federal Election Commission are successful, the limit on aggregate individual contributions per cycle could jump from $117,000 to $3 million.
As PFAW noted in February, this case threatens to be the next stage in the ongoing attack on our country’s democracy. By calling for a gutting of our country’s campaign finance reform regulations, Republicans are ignoring the majority of Americans who believe there is already far too much big money being poured into our elections.
We write frequently about the extraordinarily pro-corporate leanings of the current Supreme Court, where the Justices bend the law and twist logic in order to rule in favor of large corporate interests and against the rights of individuals harmed by those interests. In the past week, two new studies have provided powerful numbers to back up the trend.
In a report released on Thursday, the Constitutional Accountability Center found that the corporate lobbying group U.S. Chamber of Commerce has won a stunning two-thirds of the cases that it has been involved with before the Roberts Court. And this weekend, The New York Times reported on a new study from the Minnesota Law Review that found that the current Supreme Court’s five conservative justices have sided with corporate interests at a greater rate than most justices since World War II. In fact, Chief Justice John Roberts and Justice Samuel Alito, both George W. Bush nominees, are the two most pro-corporate Supreme Court justices to sit in the past 65 years:
The Times writes:
But the business docket reflects something truly distinctive about the court led by Chief Justice John G. Roberts Jr. While the current court’s decisions, over all, are only slightly more conservative than those from the courts led by Chief Justices Warren E. Burger and William H. Rehnquist, according to political scientists who study the court, its business rulings are another matter. They have been, a new study finds, far friendlier to business than those of any court since at least World War II.
In the eight years since Chief Justice Roberts joined the court, it has allowed corporations to spend freely in elections in the Citizens United case, has shielded them from class actions and human rights suits, and has made arbitration the favored way to resolve many disputes. Business groups say the Roberts court’s decisions have helped combat frivolous lawsuits, while plaintiffs’ lawyers say the rulings have destroyed legitimate claims for harm from faulty products, discriminatory practices and fraud.
Published last month in The Minnesota Law Review, the study ranked the 36 justices who served on the court over those 65 years by the proportion of their pro-business votes; all five of the current court’s more conservative members were in the top 10. But the study’s most striking finding was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush.
The current Supreme Court’s pro-corporate leanings have resulted in a huge spike in rulings favoring corporations over individual Americans, according to a new report from the Constitutional Accountability Center. MSNBC’s Zachary Roth goes through the report’s findings, including that under Chief Justice Roberts, the behemoth corporate lobbying group the U.S. Chamber of Commerce has won a full two-thirds of the Supreme Court cases in which it has been involved:
The major result of the Chamber’s success, legal scholars say, has been a string of rulings that threaten to block the courthouse door to ordinary Americans looking to hold corporations accountable. And with court-watchers’ attention focused on higher-profile gay marriage and voting rights cases this term, it’s a development that’s flown largely under the radar.
The Roberts Court’s pro-business outlook has been apparent for several years. But the CAC report suggests it may be accelerating. Both the Chamber’s participation rate and its success rate have risen significantly in recent years. This term, the Chamber filed amicus briefs in 24% of cases, up from 10% during the latter part of the Rehnquist Court, from 1994 to 2005, a period of stability when there were no changes to court personnel. And since John Roberts became Chief Justice, the Chamber has won 69% of the cases in which it’s gotten involved (see chart below). That’s up from 56% during the latter part of the Rehnquist Court, and just 43% during the last five years of the Burger Court, from 1981 to 1986.
Jamie Raskin, Senior Fellow of People For the American Way Foundation, chronicled the “Rise of the Corporate Court” in a 2010 report. He wrote:
Americans across the spectrum have been startled and appalled by the Citizens United decision, which will "open the floodgates for special interests—including foreign companies—to spend without limit in our elections," as President Obama said in his 2010 State of the Union Address. According to a Washington Post nationwide poll, more than 80% of the American people reject the Court's conclusion that a business corporation is a member of the political community entitled to the same free speech rights as citizens.
Yet, the Court's watershed ruling is the logical expression of an activist pro-corporatist jurisprudence that has been bubbling up for many decades on the Court but has gained tremendous momentum over the last generation. Since the Rehnquist Court, there have been at least five justices—and sometimes more—who tilt hard to the right when it comes to a direct showdown between corporate power and the public interest. During the Roberts Court, this trend has continued and intensified. Although there is still some fluidity among the players, it is reasonable to think of a reliable "corporate bloc" as having emerged on the Court.
What is striking today, however, is how often the Roberts Court, like its predecessor the Rehnquist Court, hands down counter-intuitive 5-4 victories to corporations by ignoring clear precedents, twisting statutory language and distorting legislative intent. From labor and workplace law to environmental law, from consumer regulation to tort law and the all-important election law, the conservative-tilting Court has reached out to enshrine and elevate the power of business corporations --what some people have begun to call "corporate Americans"--over the rights of the old-fashioned human beings called citizens.
With Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia, Clarence Thomas and Anthony Kennedy in the driver's seat today, the "least dangerous" branch of government now routinely runs over our laws and our politics to clear the road for corporate interests. When it comes to political democracy and social progress, the Supreme Court today is the most dangerous branch. The road back to strong democracy requires sustained attention to how the Court is thwarting justice and the rule of law in service of corporate litigants.
A poll commissioned by People For the American Way and fellow progressive groups late last year found that the Corporate Court was a concern for a majority of voters.
WorldNetDaily editor Joseph Farah today promoted his 9/11 National Day of Prayer event by warning that a Supreme Court decision in favor of marriage equality will mean that the high court is “legally destroying the very building block of our civilization.” Farah claims that such a ruling will make America fall “into oligarchy and tyranny” and eventually “the dustbin of history like so many empires before it.”
In a few weeks, the U.S. Supreme [sic] will make rulings in two cases that will determine whether America continues as a self-governing nation under the rule of law and will of the people or it goes the way of most other countries and descends into oligarchy and tyranny.
That is what the stakes are in rulings the justices will make on the definition of marriage.
There hasn’t been a more important Supreme Court ruling since Roe v. Wade. Not even Obamacare was this big. Both of those went very badly because of the rulings of justices named to the high court by Republicans. In this case, it will take a straight flush by justices named by Republicans to save America from legally destroying the very building block of our civilization.
I know I have been asking for prayer frequently during these trying days. I’m encouraged by the feedback I have received from thousands to my plea for a 9/11 National Day of Prayer and Fasting.
But I am convinced that without it, this country is headed for the dustbin of history like so many empires before it.
This is no idle request. It’s our only chance for survival. Government is broken. Politics is broken. The culture is broken. God is simply waiting to hear our fervent cries of repentance and deliverance.
On her Eagle Forum Live radio program last weekend, Phyllis Schlafly was joined by eminent conspiracy theorist Jerome Corsi. Corsi, who is promoting his new book on the American Civil Liberties Union, told Schalfly that the ACLU and progressives are using the Supreme Court marriage cases as a way to enact hate speech laws and shut down churches. Schlafly agreed, saying, “I do think that the main goal of the homosexuals is to silence any criticism. Most of them aren’t interested in getting married.”
Later in the conversation, Schlafly compared a potential Supreme Court ruling in favor of marriage equality to the infamous Dred Scott decision.
Corsi: The ACLU has been very strong behind the same-sex marriage. They have a whole section of the ACLU devoted to the LGBT agenda, the lesbian, gay, bisexual and transgender. And, Phyllis, if we get the Supreme Court saying that there’s a constitutional right to same-sex marriage, I think the next thing that’s going to happen is that we’re going to see an attempt to define hate speech, any minister or priest who from the pulpit condemns homosexual behavior from a scriptural basis or on principles of Judeo-Christian faith. And following that, the left will not only try to close that church down, but they’ll do it through pressing to take the tax-exempt status away from the church because the priest or the minister doesn’t agree with their agenda and is now engaged in ‘hate speech.’
Schlafly: Well, I do think that the main goal of the homosexuals is to silence any criticism. Most of them aren’t interested in getting married. But I think that’s what they want to do, and they’re starting out by trying it in the schools.
Schlafly: If five people on the Supreme Court are able to overturn our definition of marriage, which we’ve had for centuries, we had even before the Pilgrims landed on the Atlantic coast, there’s something wrong with our system. As Abraham Lincoln said in a famous, in his First Inaugural, in describing the Dred Scott case, probably the worst decision in history, and he said, okay, we have to accept what they decided for poor old Dred Scott. But we don’t have to accept it as a precedent and as something that will rule us forever, and we’re going to get this overturned. And if we don’t, we will be just simply subjects of what he called ‘that imminent tribunal.’ And we need to speak out. And before they hand down that decision, you need to pray that they come to the right decision and you all need to get your pastor to tell his congregation to pray for it.
Earlier this week, we reported that Schlafly is calling for a reinstatement of the House Un-American Activities Committee in response to the Boston Marathon bombings. When a caller asked why the ACLU couldn’t be tried for “subversive activity,” Schlafly repeated her demand to reinstate HUAC, and Corsi agreed.
Caller: The question I have is, how is it that no one has taken the ACLU to task in the courtroom and basically charged them with subversive activity?
Schlafly: Well, personally, Dr. Corsi, I think we need a new House Un-American Activities Committee, but I’ll let you answer your way.
Corsi: I’m in favor of it.
Back in September, PFAW senior fellow Jamie Raskin wrote a preview of the major cases coming before the Supreme Court this term, one of which, Kiobel v. Royal Dutch Petroleum, deals with the ability of foreign nationals to sue corporations for human rights abuses in American courts. The Supreme Court today issued a sweeping ruling siding with the multinational corporations accused of abuse. Main Justice sums up the facts of the case:
The plaintiffs accuse Royal Dutch, the Shell Transport and Trading Company and their joint Nigerian subsidy of allowing, indeed encouraging, atrocities by the Nigerian military against people who were protesting environmental damage caused by drilling in the Niger Delta in the 1990s. The companies were complicit in beatings, rapes and mass arrests by paying the soldiers, feeding them and allowing them to use oil company property as staging areas for their attacks, the plaintiffs maintain.
At issue was the application of the Alien Tort Statute, enacted in 1789, that gives United States courts jurisdiction over civil actions brought by aliens alleging torts committed in violation of United States treaties or international law. The seldom-used ATS was enacted partly in response to piracy on the high seas. The Nigerian plaintiffs, now legal residents of the United States, tried to use it in a present-day context.
As Jamie Raskin wrote in his Supreme Court preview, the Second Circuit radically twisted legal precedent in this case to rule that individuals could not sue corporations under the Alien Tort Statute:
Jurisdiction to hear the suit was clear. In 2004, the Supreme Court held, in Sosa v. Alvarez-Machain, that the Alien Tort Statute gave federal courts jurisdiction to hear claims about torts committed against aliens that violate well-established international norms like the human rights norms implicated in this case. Yet a bitterly divided Second Circuit panel in Kiobel held for the first time that the statute does not allow courts to hear suits against corporations as opposed to individuals. The Kiobel majority’s ruling on this issue was amazing since the issue was never raised, never briefed, never argued and never decided in any of the proceedings below that took place over the course of nearly a decade. (This rings a bell for close observers of the Citizens United majority, which also pulled a rabbit out of a hat to ask and answer a question never raised below.)
Today, the Roberts Court agreed. The Court unanimously ruled against the Nigerians in Kiobel, but disagreed about how far the ruling should go. Justice Roberts, writing for the conservative majority, wrote a broad ruling in favor of the corporations accused of human rights abuses. The four moderate justices concurred with the majority’s ruling on this particular case, but left the door open for similar cases to be tried in U.S. Courts. Main Justice explains:
Justice Stephen G. Breyer wrote that the defendants’ “minimal and indirect presence in the United States was not enough to give American courts jurisdiction over the case.” But he stopped short of declaring that similar cases should never end up in American courts if the abuse at issue “adversely affects an important American national interest.” Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan agreed with him.
Nicole Flatow at ThinkProgress explains the possible implications of the majority’s ruling:
This decision not only means that Nigerians cannot sue foreign corporations for their conduct abroad. On this particular point, the four-justice Breyer concurrence agreed that this case did not pass muster. Roberts’ sweeping pronouncement against extraterritoriality may also mean that foreign nationals subject to abuse, for example, at the hands of a U.S. corporation that houses its factories in places whose laws shield it from liability, or an American citizen who commits human rights violations abroad against foreigners, also could not be subject to suit in the United States.
The scope of the opinion will not become clear until it is interpreted by courts. Extraterritoriality is a legal concept that asks not just whether conduct took place abroad, but also whether the claims “touch and concern the territory of the United States” such that a plaintiff can overcome the presumption against them. The only hint the court gives is that lawsuits against corporations will face a particularly heavy burden, noting, “Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.”
What is clear is that the presumption is exceedingly difficult to overcome, and that both individuals and corporations have a high chance of skirting liability simply by doing their dirty work elsewhere.
In an email to members of his Pray In Jesus Name Project yesterday, Gordon Klingenschmitt said that Religious Right activists must become “the voice” of the “abused kids” raised by same-sex parents, who he says are “not only recruited into but used as pawns for the homosexual agenda.”
Klingenschmitt responded to Justice Kennedy’s statement about the need to remember the “voice of those children” who “live with same-sex parents” while hearing the Proposition 8 case by arguing that “those abused children really wanted one mom and one dad, they just didn't know better having been misled by California Judges who impose homosexual parents upon innocent kids, against their will, and against the will of California voters.”
He also claimed that Christians cannot support politicians who favor legalizing same-sex marriage and warned that gay rights advocates are bent on “taxing heterosexuals more to pay homosexuals to engage in immorality” and “reward their acts of sodomy.”
Now 51 of 55 Democrat Senators are now openly pro-homosexual (all but Pryor, D-AR; Johnson, D-SD; Manchin, D-WV; and Landrieu, D-LA) compared to just 2 of 45 Republicans(Portman, R-OH; Kirk, R-IL). [Dr. Chaps' comment: Never again can any Bible-believing Christian support them, if Christ is still Lord of your heart.]
Shocker: Last week Senator Bill Nelson (D-FL) literally blamed Jesus Christ for creating homosexual "marriage." Really Senator? Jesus made you vote for sin?
If you saw how the left-wing major media (including Fox News) reported today's Supreme Court arguments, it appears all but a foregone conclusion that 5 of the 9 justices will vote to homosexualize "marriage" this week, and release their decision in June.
For example, here's a quote from Justice Kennedy, supposedly the 'conservative' but open-minded swing vote, who today voiced concern about the estimated 40,000 children in California with homosexual 'parents': "They want their parents to have full recognition and full status. The voice of those children is important in this case," Kennedy said.
No, Justice Kennedy, those abused children really wanted one mom and one dad, they just didn't know better having been misled by California Judges who impose homosexual parents upon innocent kids, against their will, and against the will of California voters.
But here's some good news. 15,000 Christians marched on the Supreme Court today, demanding we define marriage as only valid between one man and one woman, for the sake of the kids, because every child deserves a mom and a dad. Let's petition with them, and let's be the voice of those abused kids, not only recruited into but used as pawns for the homosexual agenda, as proven in today's court arguments by Justice Kennedy himself.
While the national media covers only the debt crisis, Democrats in the Senate are attacking traditional marriage between one man and one woman, by attempting to repeal the 1996 Defense of Marriage Act (DOMA). Not satisfied with homosexualizing the military, or forcing gay "marriage" in states like New York, radical homosexuals testified on Capitol Hill today demanding homosexual "bonus pay" with more than 1,100 federal benefits that reward their acts of sodomy in all 50 states, taxing heterosexuals more to pay homosexuals to engage in immorality.
On Tuesday Senator Dianne Feinstein (D-CA) introduced, and President Obama quickly endorsed a new bill S.598 to promote homosexual marriage, mislabeled the "Respect for Marriage Act" (RFMA) to end federal law that defines traditional marriage between one man and one woman. White House press secretary Jay Carney told reporters Tuesday "President Obama is proud to support the Respect for Marriage Act," which disrespects traditional marriage by enforcing homosexual marriage upon all 50 states. His views are no longer "evolving" rather Obama is now fully out of the closet promoting gay marriage nationwide.
Linda Harvey of Mission America warned in her radio alert today that children will no longer be able to dream about getting married because gay marriage will warp their minds.
“What will eight-year-old girls be allowed to wish for in the coming new era of same-sex marriage?” Harvey asked. “Because if homosexual militants have their dreams fulfilled, all American children will march to a new tune.”
She claimed that “all the children of America, not just those in homosexual households,” represent the “largest group of potential victims of this nonsense” as “the widespread embrace of homosexuality at the very least would mess with their minds and innocence at critical stages of development.”
Harvey claimed that marriage equality “will yield more disease, more anxiety, depression, more teen angst in general” and “the developing heart and mind of these children will be destabilized and younger and younger children will be sexualized.”
When I was eight years old my Christmas list had one item: a bride doll. How overjoyed I was when Santa left under our tree that beautiful doll with her white veil and satin dress. This was the stuff of little girl dreams that in my future would be a wedding: a bride with a groom. But I wonder, what will eight-year-old girls be allowed to wish for in the coming new era of same-sex marriage? Because if homosexual militants have their dreams fulfilled, all American children will march to a new tune.
Is the Supreme Court considering the implications here? The radicals dream of connecting the dots; expanding their conquered territory. In California, by law, no school children hear any objections to homosexual or transgender behavior. In Massachusetts, the Department of Education has decreed that gender confused children must have access to opposite sex restrooms and locker rooms. For the homosexual advocates who dream of totally silencing those of us who object, this isn’t nearly enough. They want every school room, the Boy Scouts, TV shows and Hollywood to sing the same song to America’s little children, that when you grow up, you might date and marry someone of the same-sex or it might be the opposite sex or you might want to change your own sex and this is all good and progressive, all other views are hate.
It’s frustrating to read the transcripts of the Supreme Court oral arguments on the two marriage cases with the consequences of same-sex marriage pretty much unexplored. Our side studiously avoids the core issue: same-sex marriage is wrong because homosexual behavior is wrong. In the Hollingsworth v. Perry case, attorney [Charles] Cooper did say, ‘redefining marriage will have real world consequences,’ and Justice Kennedy mentioned unchartered waters and a cliff. But that’s just as far as these ideas went. Attorney [Ted] Olsen claims homosexuality is something people can’t change and he compares it to race, but he’s wrong and this is an enormously important point.
Since homosexuality is not inborn, the highest court in our land might want to seek input from the largest group of potential victims of this nonsense: all the children of America, not just those in homosexual households, they would live lives with a completely upside-down set of standards about dating, masculinity, femininity, courtship, future dreams and permissible behavior. The widespread embrace of homosexuality at the very least would mess with their minds and innocence at critical stages of development. More experimentation, even for a time, will yield more disease, more anxiety, depression, more teen angst in general. Does this guaranteed revolution bother only me? Or are you concerned as well?
As we witness so-called conservatives and our churches either run from this issue or worse, jump on board, it’s clear that moderate voices will not restrain the radicals from enacting their spiteful plans. All schools, even Christian institutions, will be forced to teach only one, sugarcoated viewpoint, and the wider culture will echo this and shape the new public opinion. Any mention of ex-homosexuals will be horrifying and the equivalent of honoring the Ku Klux Klan. The developing heart and mind of these children will be destabilized and younger and younger children will be sexualized. The evidence about where this revolution takes us is already available. Won’t someone out there start to look at gay marriage through the eyes of our precious children?
Dr. Paul Cameron of the Family Research Institute appeared at the National Press Club today to unveil his new report, which claims that gays and lesbians who are married or in civil unions actually die younger than their uncoupled peers.
“The Supreme Court ought not to harm homosexuals by legitimating homosexual coupling,” Cameron said, “and the psychiatric community ought to pay attention to this enormous deficit of lifespan and reopen the issue of whether or not homosexuality is a mental disability or a disorder.”
He argued that homosexuality is a “mental pathology” much like drug abuse or cigarette smoking, because it “shortens lives” and “harms its participants and harms the demographic.”
He argues that according to the Declaration of Independence, America’s sovereignty relies on respecting God’s law, including the “rights of the God-endowed natural family.” Consequently, if the US doesn’t submit to divine authority, then the country will forfeit its sovereignty and be no more.
Keyes reasons that if the Supreme Court decides “to promote specious rights intended to supplant ‘the laws of nature and of nature’s God’ invoked in the Declaration of Independence” and “deny and disparage the natural rights of the God-endowed family” by approving of same-sex marriage, it would represent an “assault on the very root and source of our claim to decent liberty.”
Now, proponents of the Defense of Marriage law insist that the present occupant of the White House must simply "obey the law," even if he has reached the conclusion that it violates a constitutional right he is obliged by oath to respect. But their insistence violates the logic that substantiates the Constitution's constraining effect on the use of the U.S. government's powers. In the first instance, each branch has the duty to keep within the boundaries of the Constitution. The issue involved in Obama's refusal to defend DOMA is not, therefore, necessarily about his obligation to "obey the law." It is about whether or not, in this particular instance, his view that the law is unconstitutional is correct.
Because the elitist faction aims to overthrow constitutional government of, by, and for the people, they work to obscure or tacitly deny this fact. They want Americans to accept the notion that those who happen to wield the power of government at any given moment may decide, amongst themselves and without recourse to the people, what is constitutional and what is not. If and when the American people foolishly acquiesce in this oligarchic lie, they will thereby surrender their status as a free people.
As I recently pointed out, we learn the source and nature of these unenumerated rights from another "fundamental law" of the United States – the Declaration of Independence, which ascribes them to the Creator's endowment of all humanity. Most self-evident among them are the rights of the God-endowed natural family "rooted in obligations antecedent to any and all humanly instituted law or government." From this endowment, the people of the United States derive the sovereign authority to establish and maintain their self-government. Unless they are willing to subvert their own sovereignty, they are obliged, in their actions and decisions, to respect the source of authority that validates it.
In the weeks to come, the U.S. Supreme Court may decide to promote specious rights intended to supplant "the laws of nature and of nature's God" invoked in the Declaration of Independence. They may decide, in contravention of the Ninth Amendment, to deny and disparage the natural rights of the God-endowed family. It will then be for us, the people, to decide how to respond to their assault on the very root and source of our claim to decent liberty. If we respect the logic that reasonably, morally, and constitutionally justifies what their decision seeks to destroy, we will be able confidently to appeal, as America's founders did in the Declaration, "to the Supreme Judge of the world for the rectitude of our intentions." Then, whatever we face, we will have the courage to defend the institution that God made to be the living archetype of all the rest of our belongings.