The first day of the World Congress of Families summit in Salt Lake City was focused on restricting access to abortion — the program described the day’s theme as “the value of life in all its stages and conditions.”
During one anti-abortion panel, Charmaine Yoest of Americans United for Life — which Miranda once described as a sort of ALEC of the anti-choice movement — celebrated the movement’s recent successes and mapped out a cultural and legal strategy to overturn Roe v. Wade, a strategy grounded in portraying abortion as harmful to women and the pro-life movement as pro-women.
Yoest told the audience to be encouraged, citing a graph from the pro-choice Guttmacher Institute showing that “more abortion restrictions have been enacted since the tidal wave election of 2010 than were enacted in the entire previous decade.” Said Yoest, “I’m really proud of this progress, because it comes from a deliberate strategy that we have enacted as a movement to concentrate on state legislatures.”
Yoest said after the 1983 failure to pass a constitutional amendment in Congress, activists convened their own congress and strategized.
“We came up with a strategy and emerged with a plan: focus on the statehouses and test the limits of Roe v. Wade. The story of the next several decades is one of trench warfare and gaining ground under the radar.”
This summer, she said, the Planned Parenthood videos have provided an “earthquake” which gives anti-abortion movement an opportunity to move forward strategically. [See PFAW’s report on the anti-Planned Parenthood attacks.] The legal strategy is aimed at Supreme Court Justice Anthony Kennedy’s writing that overturning Roe would come with a “certain cost” to women who rely on it. “As pro-lifers, we need to understand that that’s the way he thinks, and his fellow justices on the court,” said Yoest. “But they are ignoring that there is a certain cost to the culture of death.”
Yoest said abortion brings women grief and dramatically increases a woman’s suicide risk. “What an Alice in Wonderland world that we live in where the defenders of so-called women’s health are the promoters of abortion. Let’s call them abortion harm deniers.”
Yoest cited Ruth Bader Ginsburg writing in dissent in Gonzales v. Carhart that “women cannot enjoy equal citizenship status” without access to abortion. And she quoted a feminist author telling women who have had abortion that she hopes they will begin to know their own power.
Ladies and gentlemen, our strategy for the next decade must engage this debate. Abortion for women is not power; it is poverty….
This is our way forward. We must engage a mother-child strategy. The mother-child strategy is rooted in a very careful study of the Supreme Court’s abortion jurisprudence. The court has told us pretty clearly what they think about abortion. Going back again to Planned Parenthood v. Casey, they told us that the state has two areas of legitimate interest: one is protecting the health of the woman and two is protecting the life of the fetus that, according to them, may become a child. Anything that we bring before two courts – the court of public opinion and the Supreme Court — must engage both of these elements, both the mother and the child.
We must keep coming back to what we know to be the truth: pro-life is pro-woman.
Yoest paraphrased a saying by G. K. Chesterton — seemingly the most quoted conservative at the conference — saying that fairy tales are “more than true,” not because they tell us dragons are true, but because they tell us dragons can be beaten. “The culture of death,” she concluded,” is a dragon that must be beaten.”
And today, he advised a “The 700 Club” viewer to respond to gay marriage supporters by making the case that the Supreme Court’s Obergefell ruling is only an opinion that can only impact the “couple of people” directly involved in the case. The ruling would only have a wider impact if Congress or state legislatures pass gay marriage bills, Robertson claimed, making the same specious argument made by other Religious Right leaders such as Mike Huckabee.
“In the legal system, party A sues party B over marriage, ‘I want to get married to them,’ and the court says, ‘Okay, you can get married,’” he explained. “That doesn’t mean that I’ve got to get married to homosexuals, it doesn’t mean that you have to nor does it mean that it’s the law of the land. Congress didn’t pass any law. Your state legislature didn’t pass a law. So you’re not under anything, it’s a decision of the court having to do with a couple of people. Now they would like to make it bigger than that but, in terms of the Constitution, it isn’t.”
While Robertson is correct that no one will be forced to “get married to homosexuals,” the Obergefell ruling has struck down bans on same-sex marriage nationwide.
The Supreme Court began its 2015-6 Term earlier in October. Even though it issued no decisions, the critical issues it considered and the stark divisions on the Court illustrate why Election Day 2016 will be Judgment Day for the Supreme Court and our rights and liberties, when America determines the president who will select Supreme Court nominees beginning in 2017.
Three cases in which the Court heard oral argument in October are good examples. As Supreme Court analyst Tony Mauro put it, the importance of Federal Energy Regulatory Commission v. Electric Power Supply Association is "hard to overestimate," since it could involve literally billions of dollars in electricity costs and determine whether the nation's power grid collapses in the case of a future blackout.
The question before the Court is the validity of a FERC rule that would have the economic effect of persuading large electricity users to cut back their demands at peak power usage times. Not surprisingly, conservative justices like Scalia and Roberts seemed to be clearly siding with big power companies, based on a narrow view of federal government authority, while moderates like Breyer, Kagan, and Sotomayor appeared to agree with the case for federal authority and the FERC rule.
With Justice Alito recusing himself from the case, the question is whether Justice Kennedy will side with the moderates and uphold the rule or vote with extreme conservatives and vote to affirm a lower court decision striking down the rule. A 4-4 tie would result in the lower court ruling being upheld without a controlling opinion. But if a similar issue arises in a year or so, and if Kennedy, Scalia, or Ginsburg have retired from the Court and are replaced by a nominee selected by the next president, the answer will likely depend on who nominates the new justice.
The Court was similarly divided during oral arguments in October in Montgomery v. Louisiana. That case concerns whether the Court's ruling in 2012, that it is unconstitutional to impose life sentences without possibility of parole on people convicted of murder when they were juveniles, applies to people like 70-year old Henry Montgomery, who was convicted for such a crime long before the Court's ruling and has already spent more than 50 years in prison.
Far right justices Scalia and Alito sounded clearly negative on Montgomery's claim, suggesting that the Court did not even have jurisdiction to hear it, while justices like Kagan and Breyer were far more receptive. As occurred in the 2012 ruling, this case is likely to produce a 5-4 decision with the outcome depending on Justice Kennedy. The fate of a thousand or more people convicted for life while juveniles like Henry Montgomery will hang in the balance.
On its last day of oral arguments in October, the Court heard Campbell-Ewald v. Gomez, one of several cases this Term that concern efforts by business to prevent consumers and others from using class actions to redress corporate wrongdoing. Conservatives on the Court have generally sided with business in such cases and have already severely limited the use of class actions, and Gomez may well be another example.
The issue in the case is whether a business can prevent a consumer like Jose Gomez from bringing a class action to get large amounts of damages and other relief for many injured consumers by offering to give him personally all the damages he can recover as an individual -- in this case, around $1,500 for violating a federal law on unsolicited telemarketing. This would be a good deal for the company, since as many as 100,000 consumers could be included in a class action because of similar violations.
As in previous class action cases, questions from moderates like Justices Kagan and Ginsburg suggested they are likely to agree with the consumer, while those from conservatives like Scalia and Roberts were in the corporation's favor, and Justice Kennedy is likely to be the deciding vote. Regardless of how this case is decided, other cases to be considered by the Court this Term -- as well as in future years -- are likely to have a significant impact on the ability of consumers and others to band together via class actions to obtain meaningful relief for wrongs committed by corporations.
It is always difficult to predict Court decisions and votes based on comments and questions at oral argument, and the Court may not even reach the merits of all the issues presented in these cases. But the importance of the issues at stake -- billions of dollars in electricity costs, the stability of the nation's power grid, the fate of more than a thousand people sentenced to life in prison for crimes committed as juveniles, and the ability of consumers to effectively seek justice for corporate wrongdoing -- demonstrates the importance of the Supreme Court to the rights and interests of all of us. And the close divisions on the Court on these and other issues, coupled with the fact that four will be over 80 in the next president's first term, show the importance of the 2016 election on the future of the Court -- and why November 8, 2016 truly will be Judgment Day.
If you need more convincing, stay tuned as the Court continues its 2015-16 Term -- the last term before the 2016 election.
Leave it to the folks at the far-right Christian Action League, the American Family Association’s North Carolina affiliate, to come up with an anti-gay twist to the story of Little Red Riding Hood.
In a column for BarbWire today, the group’s executive director, Mark Creech, rewrites the childhood fairy tale into a rather confusing attack on gay rights and the Supreme Court.
Once upon a time there was a dear little girl who loved her grandmother supremely. The grandmother had given to her a little cap of red velvet, which suited her so well she would never wear anything else. Thus, everyone called her Little Red Riding Hood.
For a little while longer the wolf spoke with Little Red Riding Hood, mostly telling her about the way wolves are wrongly perceived by people. “Wolves are nothing to be feared, they just want to be treated like everybody else,” he told her.
While on her way, Little Red Riding Hood pondered, “Yes, I think I can understand how the wolf must feel. Perhaps he is a victim, as he says, and his way is not decadent.”
“Oh grandmother,” she said, “What big ears, eyes, hands, and mouth you have.”
“Certainly you can appreciate diversity,” replied the wolf. And just when he thought the time was right, he sprang from the bed to eat Little Red Riding Hood.
A woodcutter nearby heard her screams and rushed to save her.
He overcame the wolf with his trusty axe. The townspeople hurried to the scene, cheered and supported the woodcutter, except for five foolish judges.
The five foolish judges declared the woodcutter prejudiced, bigoted, and intolerant. They said he had no right to defend either the grandmother or Little Red Riding Hood. They said the axe must be cast away.
Standing with the five foolish judges were also some clever foxes, relatives of the wolf, who argued the wolf’s proclivity for carnage was completely normal. In fact, to suppress the wolf’s appetites, something which was inherent to his nature, would be wrong, they said. Besides, it was claimed that grandmothers are like old traditions that need to give way to the new anyhow.
And so, on the basis of these considerations, not only did the mindset of many of the townspeople start to change, but the wolf was lauded and praised. Many townspeople would fly the wolf flag from atop their village cottages and buildings. An advocacy group called WUVS, standing for “Wolves, Underfed, Voracious, and Famished,” fought to give wolves special protections in law. And no one dared challenge the true nature of the wolf for fear his house, his livelihood, and even his freedom might be taken away.
So the years passed, grandmother was dead and Little Red Riding Hood would live her life in confusion, always in danger of many wolves and never to enjoy the basket of goodies with her grandmother, whom she had known and loved for so long.
I would not do all the work for the reader here, but if it helps, in this fable of Little Red Riding Hood, the Grandmother is traditional marriage. The wolf is homosexual activism. Little Red Riding Hood is an unsuspecting public, and, in another way, children and their future. The basket of assorted goodies signifies the many blessings and joys of real marriage. The woodcutter is true religion’s opposition to so-called gay rights. His axe is state constitutional amendments to define marriage as one man and one woman. The five foolish judges are the U.S. Supreme Court justices who ruled to redefine marriage for the nation. The clever foxes are professionals who argue homosexuality is inherent, fixed, unalterable, and normal. The townspeople represent ever-changing public opinion.
On Monday, the first day of the Supreme Court’s new term, People For the American Way hosted a telebriefing for members detailing what’s at stake at the Court over the next year.
PFAW Senior Communications Specialist Layne Amerikaner moderated the call. Affiliate PFAW Foundation’s Senior Legislative Counsel Paul Gordon, who recently published an extensive Supreme Court term preview, and PFAW Senior Fellow Elliot Mincberg, lead author of the new PFAW report, “Judgment Day 2016: The Future of the Supreme Court as a Critical Issue in the 2016 Presidential Election,” were joined by PFAW Executive Vice President Marge Baker to brief members and answer questions.
Paul kicked off the call by discussing the critical issues on the Court’s docket right now: the rights of working people, equal representation through voting, education opportunities through affirmative action, and more. For example, Paul explained that Friedrichs v. California Teachers Association could “severely weaken the ability of workers to form unions” that negotiate salary, benefits, and more. In Fisher v. University of Texas at Austin, the Supreme Court could make it very difficult to “maintain healthy diversity at colleges and universities.”
As Paul explained, the mere fact that these and some other cases are on the docket is disturbing. These cases have been “ginned up to topple precedents that conservatives don’t like.” Affirmative action, union fair share fees to prevent free-riding, one person one vote for equality of representation: these are principles that the Court decided decades ago. It used to be that conservatives couldn’t muster up four justices to take on cases like these, but now that Justices Roberts and Alito have joined the Court, we’re seeing more and more cases and decisions that challenge fundamental rights.
Elliot detailed the importance of the ideological makeup of the Court: There have been more than 80 5-4 decisions in the Supreme Court since Roberts and Alito joined the Court. Most of these cases have been extremely harmful to our rights, in areas like money and politics, voting rights, and reproductive freedom. Some, though, have protected important rights, as Justice Kennedy has at times been unwilling to join the conservatives on the Court. For example, he voted with the majority in Obergefell v. Hodges to make marriage equality the law of the land. But as Elliot reminded members, there will be four justices in their 80s by the end of the next president’s first term, and another conservative justice would be devastating for issues that PFAW and members care deeply about, such as abortion rights, worker protections, and religious liberty, just to name a few.
Both conservative and progressive groups know that the next president could very well shift the makeup of the Court and thus the outcomes of key cases. Questions from members focused on what to do to take action on this issue. Elliot and Marge encouraged members to discuss with their friends and colleagues the critical impact the 2016 election will have on how pressing issues will be decided for decades to come. They also discussed with members the possibility of attending town halls for presidential candidates, who will nominate the next Supreme Court justices, as well as Senate candidates, who must confirm the justices, in order to ask questions about the types of justices they will support.
Listen to the full briefing here:
As a number of commentators have pointed out recently, Carly Fiorina’s swift rise in Republican presidential polls has given her an opportunity to display what Mother Jones called her “adventurous relationship to the truth,” which includes deliberately misleading statements on everything from the contents of the Planned Parenthood smear videos to her record as CEO of Hewlett-Packard.
Fiorina displayed her signature truthiness once again in an interview Friday with Iowa conservative radio host Jan Mickelson, who asked her to defend her statement that Supreme Court decisions like Obergefell v. Hodges are “the law of the land,” which he said would turn off voters in Iowa.
Fiorina insisted that she had never said that, speculating, “I think that is a quote from someone else, not from me,” and suggesting that Mickelson might be thinking of her Republican rival John Kasich.
In fact, Fiorina said those very words in an interview with the Iowa conservative blog Caffeinated Thoughts in May when asked about the Supreme Court’s upcoming decision in the marriage equality case.
“I think the Supreme Court decision will become the law of the land, and however much I may agree or disagree with it, I wouldn’t support an amendment to reverse it,” she said. “And I very much hope that we will come to a place now in this nation where we can support their decision and at the same time support people’s right to hold religious views and to protect their right to exercise those views.”
Fiorina told Mickelson that “there is an argument to be made for judicial engagement to rectify when the law begins to impinge on the personal immunities and privileges of citizens,” but seemed to imply that the denial of marriage rights was not such a case. Grasping onto the Right’s argument that LGBT equality undermines religious freedom, she called for the passage of state Religious Freedom Restoration Act laws similar to a controversial one passed and later amended in Indiana, which would have opened the door for anti-LGBT discrimination. She also called for the passage of such a law at “the federal level” — there is already a federal Religious Freedom Restoration Act, so presumably Fiorina supports one that would expand the ability of people to discriminate against LGBT people.
Fiorina also promised that if she were to become president, she would “appoint the right justices” and “spend a lot of time” with potential nominees “to see how well they hold up to pressure, because people look like they’re one thing and then become another thing when they can’t take pressure.”
When Mickelson suggested that Sen. Ted Cruz might fit the bill for a Fiorina Supreme Court, Fiorina laughed: “Well, wouldn’t that be an interesting selection. He clearly can stand up to pressure.”
UPDATE: Fiorina appeared again on Mickelson’s program on Monday, where he confronted her a clip of her “law of the land” comments. Fiorina evaded the question, telling Mickelson that she had “no idea what reference that snippet was from,” but that if it was “about gay marriage” she was saying that “we profoundly disagree with this” and will focus on finding Supreme Court nominees who will overturn it.
What I said, for example, was we need to be, if that was about gay marriage, we profoundly disagree with this, we need to invest our political capital and our leadership now in protecting religious liberty all across this nation, which means every state needs to enact a religious freedom protection act, as we have a national act. And it also reminds us how important it is who’s on the Supreme Court. So, let’s focus our energies on making sure we have the right nominees and the right protections and liberties.
Big money in politics has become an existential threat to our democracy. So how did we get here?
Citizens United v. FEC is one of several Supreme Court decisions that have opened the floodgates for unlimited big money in our elections and are now preventing even the most common-sense campaign finance regulations.
The judicial philosophy that has enabled these decisions is one that is hostile to democratic principles and disproportionately favorable to the rich and powerful. That philosophy is currently held by a slim five-justice majority on the Roberts Court.
A different Court majority, one acknowledging the disastrous errors in the reasoning behind Citizens United and related cases, could eventually overturn those decisions. However, that couldn’t happen overnight.
Citizens United itself undermined a century of established law allowing for certain limits on campaign spending, but that decision and even more recent ones, like McCutcheon v. FEC and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, have now established their own precedents that could take several cases and many years to overturn fully.
While a more democracy-friendly Supreme Court majority is essential for so many reasons, the long and daunting road to a Court decision overturning Citizens United shows the persisting need to pursue permanent constitutional remedies, driven by a popular national movement and legislation to pass and ratify a 28th constitutional amendment.