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.
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.”
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.
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.
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.”
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.
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.
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.”
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:
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.”
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.
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.
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.
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.”
Speaking from the pulpit of the New Life Church in Colorado Springs, Colorado, in May 2004, Focus on the Family founder James Dobson called for an amendment to the U.S. Constitution to ban same-sex marriage. Dobson’s words were simulcast into churches across the country as part of a “Battle for Marriage” rally that just happened to coincide with President George W. Bush’s hard-fought reelection campaign. Three months earlier, the president himself had announced to the nation that “to prevent the meaning of marriage from being changed forever, our nation must enact a constitutional amendment to protect marriage in America.”
Opposition to same-sex marriage emerged as a key component of the president’s reelection strategy that year, as the Bush campaign worked with Religious Right leaders, including Dobson, to marshal conservative voters to the polls to back state constitutional amendments banning same-sex marriage and other unions. Ballot measures in 11 states, all successful, aided the president’s reelection bid and helped to swing the momentum, for a time, to the side of the anti-gay Right.
While a federal constitutional amendment banning marriage for gay and lesbian couples had failed to clinch the required votes from either house of Congress, after the 2004 election, Dobson stressed that “mainstream Americans” supported such an amendment, knowing that they “could not stand idly by while the radical gay agenda was forced down their throats.”
A decade later, Dobson left Focus on the Family, reportedly in part because the organization he had founded refused to give a leadership position to his divorced son. Dobson and his son Ryan now host a radio program called “Family Talk” and Focus has moved on under the less fiery leadership of Jim Daly. Ted Haggard, the pastor of the church where Dobson spoke at the 2004 “Battle for Marriage,” eventually left his post after acknowledging that he had relationships with men. An architect of Bush’s 2004 re-election strategy, Ken Mehlman, announced six years later that he is gay. Another Bush campaign strategist, Karl Rove, said in 2013 that he could see a future GOP presidential nominee endorsing gay marriage.
This dramatic shift toward marriage equality may culminate this year when the Supreme Court hears arguments in Obergefell v. Hodges, a collection of cases challenging the constitutionality of the remaining state-level bans on same-sex marriage.
But the Religious Right is not ready to give up what was, until recently, a winning culture-war issue.
Now, as even many conservative pundits are predicting that the Supreme Court will strike down the remaining state bans on same-sex marriage, Religious Right leaders are preparing their response.
In a conference call with other movement figures, Dobson was steadfast in his opposition. If the Supreme Court strikes down the state bans and states across the country fail to convene “a state constitutional convention to re-examine the Constitution” on marriage, Dobson warned, “we’re going to see a general collapse in the next decade or two.”
Worse, Dobson said, there could be a war: “Talk about a Civil War, we could have another one over this.”
This style of apocalyptic rhetoric surrounding the Supreme Court’s upcoming decision is not uncommon in a movement whose leaders are preparing to commit civil disobedience and calling on states to defy the court if it issues a broad ruling in favor of marriage rights for gay and lesbian couples.
The Religious Right’s current strategy in the fight against marriage equality — claiming to be the real victims while making wild warnings about imminent anti-Christian persecution — was previewed in the 2009 signing of the Manhattan Declaration and the campaign against the Shepard-Byrd Hate Crimes Prevention Act the same year.
Warning that America is on the brink of turning into a Nazi-like state where religious freedom is a thing of the past, a group of Roman Catholic and evangelical leaders, including prominent Religious Right figures, signed The Manhattan Declaration, pledging their commitment to civil disobedience in the face of what they described as the tyranny of gay rights laws and legal abortion.
Signers asserted that supporters of gay marriage and abortion rights are bent on trampling their religious freedoms. They compared themselves to Christian martyrs, civil rights leaders like Martin Luther, resisters to Nazi tyranny, heavenly angels and the signers of the Declaration of Independence. One of the declaration’s architects, the late Religious Right leader Chuck Colson, worried that Christians in America would soon end up in jail, while Dobson wondered if Americans will be forced to “leave this beloved country and spend the rest of our lives in exile.”
That same year, Religious Right activists launched a relentless, but unsuccessful, campaign against the Shepard-Byrd Hate Crimes Prevention Act, which expanded the federal hate crimes law to include crimes motivated by the victim’s sexual orientation or gender identity. The Right alleged that the bill would criminalize Christian teachings and the Bible, throw pastors in jail, quash free speech and legalize pedophilia and other illegal sex acts. In the five years following the law’s enactment, none of the wild predictions about its effects have come close to materializing. But that hasn’t stopped the Religious Right from recycling the very same discredited claims to warn against nationwide marriage equality.
For example, Rick Scarborough, a prominent Texas pastor and activist with close ties to politicians including Sen. Ted Cruz, has repeated his unfounded claims about the 2009 hate crimes act almost verbatim when discussing the potential dangers of legalizing same-sex marriage. As did Mike Huckabee, who told pastors on a conference call that preaching against homosexuality will be criminalized. Just this month, Scarborough warned that if gay couples are no longer barred from marriage, preaching from the Bible will become a crime and anti-gay conservatives will be thrown in jail. Five years ago, he made almost exactly the same dire warning about the hate crimes act.
Influential Religious Right groups including the American Renewal Project, led by GOP organizer David Lane, and the Family Research Council are asking pastors to tell their congregations that marriage equality could bring about the end of freedom and, according to Lane, “a complete moral breakdown .” Lane has previously warned that legal equality for LGBT people will eventually lead to America’s “utter destruction” and even terrorist attacks.
The Religious Right’s apocalyptic rhetoric about marriage equality has only become more incendiary as many of the ban’s defenders begin to expect that they will lose at the Supreme Court.
Nazi Germany, Jim Crow comparisons
Increasingly, Religious Right leaders have been portraying the push for equal rights for the LGBT community as a fascist, Nazi-style movement that will usher in a wave of oppression. And much like how Martin Luther King Jr. and the Civil Rights Movement resisted Jim Crow, these activists argue, conservatives must also defy gay rights laws that they view as equally if not more oppressive.
Bryan Fischer, the conservative radio host and former American Family Association spokesman, regularly claims that gay people are modern-day Nazis and to blame for the rise of Nazism in Germany, asserting that Adolf Hitler was “an active homosexual” who recruited gays into his cause because “homosexual soldiers basically had no limits and the savagery and brutality they were willing to inflict on whomever Hitler sent them after.”
Family Research Council President Tony Perkins has also wondered when gay rights supporters will “start rolling out the boxcars to start hauling off Christians.”
Mat Staver, chairman of the conservative legal advocacy group Liberty Counsel, has likened a potential pro-equality Supreme Court ruling to the infamous Dred Scott decision and urged people to defy such a ruling just as they would “if the government forced you turn over a Jew in Nazi Germany.” Staver, who has warned about the prospect of “forced homosexuality” and repeatedly compared gays to terrorists, insists that the Supreme Court could spark a new Civil Rights Movement, this time to oppose gay rights.
An alarming number of anti-gay activists have compared themselves to Dietrich Bonhoeffer, a Lutheran theologian who was executed for defying Nazi rule. “This is a Dietrich Bonhoeffer moment for every preacher in America,” Scarborough told participants in the recent activist conference call hosted by Dobson. Staver offered a similar message to conservatives in a recent radio interview: “This is a Bonhoeffer moment.”
David Lane has said that Christians in America “must risk martyrdom” over the issue of marriage equality. Likewise, American Family Association governmental affairs director Sandy Rios has repeatedly urged opponents of gay rights to “prepare for martyrdom.”
Conservative pundit Glenn Beck told his show’s viewers this year that gay rights advocacy is leading to concentration camps and “a Christian holocaust.” Other conservative commentators have similarly suggested that gay people are pushing for anti-Christian persecution and genocide.
The persecution theme seems to have struck a chord. Leading GOP figures including Sen. Rand Paul of Kentucky and former Arkansas Gov. Mike Huckabee, along with several Republican congressmen, all appear in a film to be released this year that alleges that the gay rights movement plans to outlaw Christianity. Huckabee has repeatedly invoked Nazi tyranny while discussing gay rights, and even said that the gay community seeks to ultimately destroy churches and the Gospel. Texas Republican Sen. Ted Cruz accused gay rights supporters of waging a “jihad” against freedom.
Even more frequently, anti-gay activists maintain that gay rights will usher in a new form of slavery and Jim Crow.
“Apparently someone forgot to tell the Stormtroopers in the homosexual movement about the Civil War, the Civil Rights Movement, and freedom of both will and conscience,” Fischer said last year. “The leaders of the Gay Gestapo have become our new slave masters. They can now send us to the hole if we refuse the massa’s demands.”
Fischer has also charged that gay rights measures violate the constitutional ban on slavery, and even declared that as a result of gay rights, “Jim Crow is alive and well, we’ve got Jim Crow laws right back in operation, Christians are the new blacks.”
Some activists are calling for an anti-gay version of Rosa Parks. One even suggested that gay marriage opponents should follow in the footsteps of the “sidewalk counselors” who stand outside of abortion clinics in order to dissuade women from entering.
Brian Brown, the head of the National Organization for Marriage, has similarly claimed that gay rights advocates are practicing an “anti-religious” version of Jim Crow, while Fox News pundit and RedState editor Erick Erickson has said that “gay rights activists use the tactics of Bull Connor to push for what they declare civil rights.”
Perkins, the Family Research Council leader, is one of the most visible and vocal figures in the Religious Right, frequently appearing on national television and hosting his own daily radio show. Perkins also organizes an annual conference, the Values Voter Summit, which brings top Republican politicians together with Religious Right activists. But despite his veneer of respectability, Perkins is just as extreme as activists considered to be on the far-right fringe: He has spoken out in defense of Uganda’s “kill the gays” measure and called gay rights supporters Satanic, among other things.
Perkins has also taken to warning that if the Supreme Court sides with marriage equality advocates, the U.S. will see a full-blown revolution.
Perkins warned in 2012 that if the Supreme Court were to strike down same-sex marriage bans throughout the country, “I’m telling you what, I think you will create a firestorm of opposition. I think that could be the straw that broke the camel’s back, when you look at a nation that is so divided along these moral and cultural issues that you could have — I hate to use the word — a revolt, a revolution. I think you could see Americans saying, ‘you know what, enough of this,’ and I think it could explode and just break this nation apart.”
“They’re sowing the seeds of the disillusion of our republic,” Perkins said of gay marriage supporters in 2014. “I think there’s coming a point that they’re going to push Christians to a point where they’re not going to be pushed anymore, and I think we’re very quickly coming to that point.”
As the Supreme Court considered a pair of marriage cases in 2013, Perkins said that the threat of a revolution may keep the justices from striking down same-sex marriage bans:
I believe the court will push as far as they think they can without creating a social upheaval or a political upheaval in this country. They’re smart people, I think, they understand how organizations and how societies work and if you get your substructure out of kilter with the superstructure, if you get government out of whack with where the people are and it goes too far, you create revolution. I think you could see a social and cultural revolution if the court goes too far on this.
Just last month, Perkins again predicted that the Supreme Court could trigger an uprising with a ruling in favor of marriage equality: “If the court imposes upon the nation a redefinition of marriage, I don’t think the nation is going to accept it, I absolutely don’t, and the conflict that is going to come as a result of it.”
Perkins may not find much support for his anti-gay revolution from the public at large, but he may find his some willing participants in his fellow Religious Right leaders.
Liberty Counsel founder Mathew Staver has claimed that a Supreme Court ruling favorable to marriage equality would take the country “back to the days of the American Revolution” and create the “groundswell of a potential new American Revolution.”
“Martin Luther [King] was always speaking of non-violent protest and I would hope that’s what we would do here but you never know what happens,” he cautioned.
Staver warns that an adverse Supreme Court ruling, along with President Obama’s pro-gay-rights policies and the possible passage of the Employment Non-Discrimination Act, would have “catastrophic consequence[s] 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.”
“The church and people of faith and values need to rise up” against such a ruling, he said in 2013. “We just simply cannot allow this to become the law of the land.”
The previous year, Staver warned that marriage equality “could be the unraveling of the United States” and trigger a civil war:
This is the thing that revolutions literally are made of. This would be more devastating to our freedom, to our religious freedom, to the rights of pastors and their duty to be able to speak and to Christians around the country, then anything that the revolutionaries during the American Revolution even dreamed of facing. This would be the thing that revolutions are made of. This could split the country right in two. This could cause another civil war. I’m not talking about just people protesting in the streets, this could be that level because what would ultimately happen is a direct collision would immediately happen with pastors, with churches, with Christians, with Christian ministries, with other businesses, it would be an avalanche that would go across the country.
After the Supreme Court struck down a key portion of DOMA, Staver declared that the country was “crossing into the realm of rebellion, we’re crossing into the realm of revolution.”
The Alabama Example
After the Supreme Court’s Windsor decision led to a string of federal court decisions striking down bans on same-sex marriage, Religious Right leaders pleaded for governors and other state officials to openly flout the rulings.
Perkins said that states should not “listen to these courts” that make decisions “inconsistent with scripture.” Staver agreed, claiming that the states must defy any court which has “literally lost their mind.”
Mike Huckabee, the former Arkansas governor and presidential candidate, said state and local officials should simply refuse to enforce such rulings, explaining: “Well, the courts have spoken and it’s an important voice, but it’s not the voice of God and the Supreme Court isn’t God.”
Finally, they found their answer in Roy Moore, the elected chief justice of the Alabama Supreme Court.
Moore emerged as a conservative hero over a decade ago, when he defied orders to remove a Ten Commandments monument that he installed in the courthouse rotunda during his previous term as chief justice. When the standoff eventually led to Moore losing his post, he parlayed his newfound fame into two unsuccessful gubernatorial campaigns and even a presidential “exploratory committee.” Moore also launched his own far-right legal advocacy group, the Foundation for Moral Law.
Moore returned to the court after winning a statewide election in 2012 and two years later, he once again made national headlines when he ordered state probate judges, who are responsible for issuing marriage licenses, to disregard a Bush-appointed federal judge’s decision striking down the state’s ban on same-sex marriage. Moore demanded that the state flout the ruling, saying that it had no need to implement the decision.
Moore has contended that gay marriage will “destroy the very foundation on which this country was built” and “destroy this country,” warning that the country will “suffer” divine judgment for embracing Satanic gay rights. “No society is prepared to deal with the problems arising out of same-sex marriages: child abuse, adoption, divorce, foster care, alimony, and the list could go on and on,” Moore told one anti-marriage-equality rally. In his prior stint as chief justice, he wrote that homosexuality is an “inherent evil” and “criminal lifestyle” that “should never be tolerated.”
Insisting that his personal reading of the Bible trumps the federal court’s ruling, Moore believes that any decision which contravenes his understanding of God’s law is inherently unconstitutional since the Constitution, he claims, is based on divine precepts.
His case against marriage equality is simple: “Homosexuality is wrong and we all know it. Marriage of the same sex is wrong and we all know it.” Moore’s legal advocacy organization, now led by his wife, defended his order to probate judges by explaining that “homosexual conduct is still sin, and we must stand firm for what is right.”
Conservative politicians hailed Moore. The head of the Alabama GOP thanked Moore for saving the state from God’s wrath; Religious Right preacher Cindy Jacobs said God had told her that He is using Moore “to reverse what Satan has done”; NOM’s Brian Brown praised Moore’s “principled stand” against “tyranny”; and Bryan Fischer said that Moore acted “in the finest tradition of Martin Luther King, Jr.” by "waging the civil rights battle of this decade.”
Moore took his show to the road, telling a rally in Texas held in his honor that he hopes he will not have to “give his life” in the fight against gay marriage. He warned at a Family Research Council event that the government will soon legalize “parent-and-child” marriages and justify “taking your children simply by the same logic they’re following.”
“Christians need to stand up and do their duty to God as their duty to their country,” he said.
Some Republicans and their allies in the Religious Right hope that Moore’s defiant stance will serve as a model for the rest of the country.
A bill introduced in Texas not only declares that the state does not have to follow any U.S. Supreme Court ruling on marriage equality, but it goes one step further by blocking funding for the issuance of marriage licenses to same-sex couples. The bill would go so far as to punish state employees who issue marriage licenses to same-sex couples, barring such employees from “a salary, pension, or other employee benefit.”
In North Carolina, a group of Republican lawmakers want to create a religious exemption for officials in charge of issuing marriage licenses who don’t want to follow a recent court ruling legalizing same-sex marriage. Staver’s group, Liberty Counsel, filed a lawsuit “requesting emergency protection from the state courts for any magistrate who refuses to issue a marriage license to a same-sex couple.”
GOP lawmakers in Oklahoma reacted to a court ruling striking down their state’s marriage ban by proposing a bill which would remove any judge who issues a marriage license to a same-sex couple and deny salaries, benefits and pensions to any state employees involved in marrying gay couples. Another bill in Oklahoma would remove judges from the marriage licenses process altogether and instead restrict marriage duties to “an ordained or authorized preacher or minister of the Gospel, priest or other ecclesiastical dignitary of any denomination who has been duly ordained or authorized by the church to which he or she belongs to preach the Gospel, or a rabbi.”
End of the Line
While social conservative leaders have mostly focused on the purported repercussions of a decision that they see as unfavorable, they also have a plan in case the court sides with their arguments: demand that states roll back same-sex marriage rights and re-impose bans previously removed by the voters, lawmakers or courts.
For now, though, right-wing leaders will be focused on doing what they always do: misleading their supporters about the so-called dangers of gay rights, making reckless charges of religious persecution, and supporting unconstitutional means to promote their discriminatory goals.
However, Dobson and his allies do see the silver lining of legal gay marriage. In a conversation with Dobson the week before the Supreme Court’s oral arguments in the marriage cases, pastor Jim Garlow and former National Organization for Marriage president Maggie Gallagher predicted that Americans will ultimately reject gay marriage once the country experiences its horrible consequences; that is, if America is able to survive that long.
Conservative activist E.W. Jackson said at an anti-gay press conference at the National Press Club earlier today that conservative Christians are prepared to die in the fight over gay marriage, just like the Christian students in Kenya who were recently murdered by radical Islamic terrorists.
Jackson, who was the 2013 Republican nominee for lieutenant governor of Virginia, added that gay marriage is “sowing the seeds of our eternal destruction” as it is removing people's reliance on God’s truth. “We will give our lives standing for the truth,” he said.
Janet Boynes, an ex-gay activist, also warned that the Supreme Court will try to send people “back to slavery” by ruling in favor of marriage equality, while preacher Rick Scarborough said that he is prepared to die over the marriage debate.
Update: Perkins later denied making his comments about impeachment on "Face the Nation."
Family Research Council President Tony Perkins spoke with Iowa-based radio host Jan Mickelson yesterday about the upcoming marriage case at the Supreme Court, which Perkins predicted will end with the court striking down bans on same-sex marriage across the country. Once this occurs, Perkins warned, “it will be open season on people of faith.”
He predicted that the court will issue a ruling similar to Roe v. Wade, further dividing Americans and contradicting “natural law.”
Mickelson suggested that if this happens, members of Congress should try to “remove” the Supreme Court’s “jurisdiction” over the marriage issue and “nullify” its decision, sending the message to the justices that “if you try it again we will impeach your sorry keisters.” Perkins heartily agreed: “I think you’re absolutely right.”
Mickelson also said that Justices Kagan and Ginsburg should recuse themselves from the case since they have both officiated weddings for same-sex couples, claiming that the two are trying to impose their religion of “secular progressivism” on the country.
“Why should a religious minority like Kagan or Ginsburg, I’m not talking about their Jewish background, I’m talking about their secular progressivism, their form of religion, why does their religion get a seat at the table and everybody else’s view gets vilified?” he asked.
On her daily “Mission America” radio bulletin today, Linda Harvey asked listeners to pray that the Supreme Court will rule against marriage equality advocates and that the justices will “not be swayed by the schemes of Satan to deceive, divide and destroy.”
But if Satan does get his way, Harvey said, people should be prepared to resist the “unconstitutional, unlawful decision” and protect the children who will be affected by the resulting “damage” of the ruling.
Harvey prayed that the Supreme Court marriage cases would ensure that the “eyes of America will open to the ungodliness of homosexuality and sexual sins of all kinds and we will turn from the elements in or culture that are driving this.”