“If You’re Scratching Your Head, You’re Not Alone”: Rubio Is Confused About Christianity, Marriage Equality, And The Constitution
Marco Rubio went on television with the Christian Broadcasting Network’s David Brody and suggested that Christianity is on the verge of being labeled “hate speech.”
If you’re scratching your head, you’re not alone.
Rubio’s rambling statement botched a simple understanding of constitutional law and free speech rights. Not to mention reality.
According to CBN’s transcript:
“If you think about it, we are at the water’s edge of the argument that mainstream Christian teaching is hate speech,” Rubio told CBN News. “Because today we’ve reached the point in our society where if you do not support same-sex marriage you are labeled a homophobe and a hater.”
“So what’s the next step after that?” he asked.
“After they are done going after individuals, the next step is to argue that the teachings of mainstream Christianity, the catechism of the Catholic Church is hate speech and there’s a real and present danger,” he warned.
Rubio appeared to be referring to the legal concept of “clear and present danger,” which the Supreme Court developed in the early 20th century, attempting to articulate the circumstances under which the government can proscribe political speech. Through the early 20th century the Court applied it in situations in which a person’s speech was deemed to be a threat to national security, sustaining a war effort, or to the stability of the government. But in the later part of the century, the Court abandoned it.
The Court last appeared to address this idea in 1969, in Brandenburg v. Ohio. In that case, it reversed the conviction of Clarence Brandenburg, a Ku Klux Klan leader, under an Ohio statute that criminalized “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” for a speech in which he said, “if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.” The Ohio law, the Court held, violated Brandenburg’s free speech rights.
Although the Court’s opinion does not use the term “clear and present danger” and explicitly reject it, in his concurrence, Justice William O. Douglas noted his skepticism that it could be squared with the First Amendment at all. “Though I doubt if the ‘clear and present danger’ test is congenial to the First Amendment in time of a declared war,” he wrote, “I am certain it is not reconcilable with the First Amendment in days of peace.”
Returning to Rubio’s statement, he is vague about who is labeling Catholic teaching “hate speech.” Does he mean the government? Does he mean people on the internet? Under the First Amendment, the government cannot stop citizens from engaging in speech, even if a listener finds it hateful. If by “they” he means American citizens, the simple answer is “they” have a constitutionally protected right to criticize the Catholic church; the church also has a constitutionally protected right to its doctrine.
But if Rubio is suggesting that “they” are the government, I can’t begin to wrap my mind around the scenario he is suggesting. Is he suggesting the government will deem a church’s teaching “hate speech?” There’s no basis or precedent that would remotely suggest that the government could regulate religious speech (whether “mainstream Christian teaching” or other religious teaching) at all, much less deeming it “hate speech.” The Free Exercise Clause protects religious practice and religious speech. Under the Free Speech Clause, the government cannot proscribe “hate speech” or even define it. Under the Establishment Clause, the government cannot endorse (or renounce) a particular religion.
You can say gay people are intrinsically disordered. Or you can say they don’t have a constitutional right to get married. They can say you’re a homophobe. The government can’t stop any of you.
But Rubio blurs the issue by suggesting that a nebulous “they” will first “go[] after individuals,” after which there is a slippery slope to arguing that “the catechism of the Catholic Church is hate speech.” Although CBN transcribed his next words as “and there’s a real and present danger,” if you watch the video, he says, “and that’s a real and present danger.” Suggesting, therefore, not that he believes “they” will argue that Catholic teaching is a “real and present danger” (whatever that is) but that the nebulous “they” present a “real and present danger” to Christianity.
Rubio’s statement is simply a confused muddle of fear-mongering and constitutional misconception. Neither of which is very presidential.
By: Sarah Posner, Religion Dispatches, May 28, 2015
“The Freedom To Provoke”: The Right To Free Speech Does Not Include The Right Not To Be Criticized
It’s still a radical document, the U.S. Constitution, no part of it more so than the First Amendment. Almost everybody’s for freedom of speech, particularly for themselves and people who agree with them. However, the part about no establishment of religion vexes True Believers of every persuasion. How can government possibly remain neutral in matters of faith?
But what really confuses people is an episode like the recent failed terrorist attack in Garland, Texas. Does our commitment to freedom of expression require that we condemn Elton Simpson and Nadir Soofi, the two self-proclaimed ISIS jihadists who got themselves shot to death during an abortive attempt to massacre participants in a well-publicized contest to draw ugly cartoon caricatures of the Prophet Mohammad?
Absolutely it does. Those two murderous dimwits got exactly what they came looking for. Although nobody’s saying so, something tells me the police officer who took them down wasn’t just the average traffic cop. That fellow would have been all over TV by now. This guy has remained anonymous. Amateurs are ill advised to get into gun battles with professionals.
But are we therefore also required to admire Pamela Geller, co-founder and president of Stop Islamization of America, the organization that sponsored the cartoon contest? No, we are not. The right to free speech does not include the right not to be criticized.
I’m glad nobody shot her. However, Geller’s actions were deliberately and characteristically provocative, coarse and contemptuous of others’ beliefs; in short, the very definition of bigotry. In the final analysis, those actions are also damaging to this country’s ability to prevail in its long twilight struggle with radical Islamic terrorism.
The amazing thing is how observers find this hard to see. Writing in his Washington Post media column, the normally sensible Erik Wemple takes issue with Geller’s critics. “And who’s being treated as the public enemy on cable?” he asks incredulously. “The woman who organized a cartoon contest.”
I’m pretty sure Wemple would take a different view of a Stormfront competition to caricature the ugliest hook-nosed rabbi.
But hold that thought.
“To her enduring credit,” Wemple adds “Fox News’ Megyn Kelly has been screaming all week about the folly of the ‘too-provocative’ crowd.”
Indeed she has. Interestingly enough, the lovely Ms. Kelly’s antagonists include Fox News luminaries Bill O’Reilly and Donald Trump, along with MSNBC’s Chris Matthews, CNN’s Jake Tapper, Republican presidential candidate Jeb Bush and others Wemple characterizes as “folded into a crouch of cowardice and rationalization.”
Megyn Kelly’s thunderous rebuttal to O’Reilly was couched in melodramatic terms Geller herself would find appropriate: “You know what else the jihadis don’t like? They hate Jews. Should we get rid of all Jews? That’s the path we’re going to go down catering to the jihadis. There’s no satisfying them.”
Holy false dichotomies, Batman! So the choices are deliberately offend the religious sensibilities of millions of peaceable Muslims or get rid of Jews?
This kind of black-and-white thinking is pretty much the stock in trade of propagandists like Geller intent upon persuading Americans that not only ISIS and al Qaeda extremists but Islam itself and Arabs in particular are terrorist enemies of the United States. All Arabs, everywhere.
The problem, argues former George W. Bush speechwriter Michael Gerson, is that the worldwide battle with Islamic fundamentalism can’t be won without Muslim allies — loyal U.S. citizens who report suspicious activities; allies and proxies who fight against violent Islamism; hundreds of millions of people around the world who repudiate Salafism by the peacefulness and tolerance of their daily lives.
When Americans engage in high-profile, attention-seeking acts of blasphemy, they are not joining U.S. military and intelligence forces at the front line; they are complicating and undermining their work.
President Obama has said much the same thing.
Things might also be different if Pamela Geller didn’t have such an extensive track record. “On her website,” reports the Jewish Daily Forward “Geller has denounced President Obama as ‘a third worlder and a coward’ who ‘will do nothing but beat up on our friends to appease his Islamic overlords’ and as ‘a muhammadan’ who “wants jihad to win.”
The Anti-Defamation League has criticized Geller for “consistently vilifying the Islamic faith under the guise of fighting radical Islam.” The British government refused to let her enter that country in 2011. She has characterized other Jews who criticize her as worse than “21st-century kapos,” a reference to Jews who served as guards in Nazi death camps.
Astonishingly, after extreme-right terrorist Anders Behring Breivik murdered 70 people at a Norwegian Labour Party summer youth camp in 2011, he credited Geller with inspiring him. She then assailed the Scandinavian left for harboring anti-Israel sentiments, posting a camp photo on her Atlas Shrugs website captioned: “Note the faces which are more Middle Eastern or mixed than pure Norwegian.”
Non-Aryan Untermenschen, Hitler would have called them.
By: Gene Lyons, The National Memo, May 13, 2015
“GOP Lawmakers Take Aim At Constitutional Principle”: Ending Birthright Citizenship Has Been Added To The Far-Right’s To-Do List
The 14th Amendment to the Constitution doesn’t leave much in the way of wiggle room: the rights of American citizenship are given to “all persons born or naturalized in the United States.” It’s a principle generally known as “birthright citizenship,” and after its enactment following the Civil War, the Supreme Court has protected the tenet many times.
But as Republican politics moved sharply to the right, and anti-immigration sentiments within the GOP became more extreme, the party’s “constitutional conservatives” decided the principle, championed by Republicans nearly 150 years ago, needs to go. Shortly after the “Tea Party” gains in 2010, ending birthright citizenship was added to the far-right’s to-do list.
And yesterday, as Dana Milbank explained, a congressional panel actually considered a plan to scrap the existing constitutional provision.
A House Judiciary subcommittee took up the question Wednesday afternoon, prompted by legislation sponsored by Rep. Steve King (R-Iowa) and 22 other lawmakers that, after nearly 150 years, would end automatic citizenship.
The 14th Amendment, King told the panel, “did not contemplate that anyone who would sneak into the United States and have a baby would have automatic citizenship conferred on them.” Added King, “I’d suggest it’s our job here in this Congress to decide who will be citizens, not someone in a foreign country that can sneak into the United States and have a baby and then go home with the birth certificate.”
It’s no small task to undo a principle, enshrined in the Constitution and upheld by the Supreme Court, that defines the United States as a nation of immigrants. It’s particularly audacious that House Republicans would undo a century and a half of precedent without amending the Constitution but merely by passing a law to reinterpret the 14th Amendment’s wording in a way that will stop the scourge of “anchor babies” and “birth tourism.”
That’s no small detail. In the American system of government, if federal lawmakers want to alter constitutional law, they have to actually amend the Constitution. But King and his cohorts have a different idea: they intend to simply pass a regular ol’ law voiding the unambiguous language of the 14th Amendment.
Remember, these are the same folks who are convinced President Obama is a radical who ignores constitutional principles he doesn’t like.
To bolster his case, House Republicans invited a few “experts” to tell lawmakers why the plan to end birthright citizenship is a great idea – one of whom has a deeply troubled history on issues related to race.
But to dismiss the entire debate as a pet project of a clownish congressman would be a mistake. Sen. David Vitter (R-La.), for example, is also sponsoring a bill to end birthright citizenship, calling it a constitutional “loophole” he hopes to fill.
House Judiciary Committee Chairman Bob Goodlatte (R-Va.) hasn’t signed on to King’s bill, but he considers the constitutional principle an open question. “The question of whether our forefathers meant for birthright citizenship in all circumstances to be the law of the land is far from settled,” Goodlatte said at the hearing. “In any event, we must still determine if it is the right policy for America today.”
Even at the national level, Sen. Rand Paul (R-Ky.), a GOP presidential candidate, recently sat down with a right-wing conspiracy-theory website, WorldNetDaily, where he voiced opposition to birthright citizenship.
WND: Do you still want to end birthright citizenship?
PAUL: Yeah, I think if you have a broken system like we have now, you can’t let just people – you know, I’ve always agreed with Milton Freedman who said you can’t have open borders and a welfare state. You can’t become a magnet for the world and let everybody come in here, have children, and then they all become citizens. So I still do agree with that.
In 2011, Vitter introduced a measure to undo birthright citizenship, and the proposal picked up four Senate Republican co-sponsors. Rand Paul was one of the four.
It’s a bad sign when the debate shifts from whether or not to pass comprehensive immigration reform to whether or not Congress wants to nullify part of the 14th Amendment.
By: Steve Benen, The Maddow Blog, April 30, 2015
“Constitutional Protections Cannot Be Undone By Popular Vote”: Why The Constitution Trumps Any State’s Ban On Same-Sex Marriage
With the Supreme Court scheduled to hear oral argument next week in marriage equality cases, everyone is looking to the marriage cases the Court decided in 2013 in an attempt to predict what it’s likely to do this time around. But another recent case on a very different topic may actually have much more to say about marriage equality than one would think: last year’s case about warrantless searches of an arrestee’s cell phone. In that case, the Court held such searches unconstitutional and underscored a principle that bears on the marriage discussion—namely, that constitutional protections cannot be undone by popular vote.
The basic question in the marriage equality cases is simple. Does the Fourteenth Amendment—which prohibits states from denying any person “liberty… without due process of law” and “the equal protection of the laws”—bar state bans on same-sex marriage? The text and history of the U.S. Constitution, not to mention the Court’s own precedents, make clear that it does. Opponents of marriage equality thus are resorting to what is becoming a familiar argument, saying marriage equality should be decided not by the courts, but by the people. By that logic, citizens of individual states can trump the Constitution’s broad equality guarantee if they vote to do so.
One of the most significant statements of this view can be found in the lower court opinion the Court is reviewing. Last year, federal appeals court judge Jeffrey Sutton described the question in the marriage equality cases as a “debate about whether to allow the democratic processes begun in the States to continue… or to end them now by requiring all states in the Circuit to extend the definition of marriage to encompass gay couples.” He noted that “[i]n just eleven years, 19 states and a conspicuous District, accounting for nearly 45 percent of the population, have exercised their sovereign powers to expand [the] definition of marriage.” He described that “timeline” as “difficult… to criticize as unworthy of further debate and voting.” Unsurprisingly, defenders of that opinion have continued this line of argument in the Supreme Court. One of the parties’ briefs argues that the Court should adopt a deferential standard in reviewing state marriage bans because that standard “defers to voters in order to protect the democratic process.” Another asserts that “[t]he Constitution delegates most sensitive policy choices to democratic debates, not judicial mandates.”
These arguments about “democratic process” may seem more attractive than some of the other arguments made by opponents of marriage equality. For instance, leaders of the 2012 Republican National Convention Committee on the Platform filed a brief arguing that marriage bans are constitutional because, in part, men need “traditional marriage” so women can “‘transform [their] male lust into love.’”
But there’s a basic flaw in the “democratic process” arguments, as last year’s cell phone search decision confirms. They get the Constitution exactly backwards.
In Riley v. California, the Court considered whether the police may without a warrant search someone’s cell phone following an arrest. The Court held, in a unanimous opinion, that the answer is no; such searches are generally prohibited by the Fourth Amendment’s requirement that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures… not be violated.” Recognizing that “unrestrained search[es] for evidence of criminal activity” was “one of the driving forces behind the [American] Revolution,” the Court concluded that warrantless cell phone searches permitted too great an intrusion on privacy and thus should not be allowed, absent exigent circumstances preventing the police from obtaining a warrant. As Chief Justice Roberts explained in the Court’s opinion, modern cell phones are “now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy,” and they can contain a vast amount of “sensitive personal information.”
Justice Alito agreed with the rest of the Court that such searches were unconstitutional, but he wrote separately to make two points, one of which has bearing on the marriage equality cases. Alito wrote that he “would reconsider the question presented here if either Congress or state legislatures, after assessing the legitimate needs of law enforcement and the privacy interests of cell phone owners, enact legislation that draws reasonable distinctions based on categories of information or perhaps other variables.” Put differently, Alito would allow Congress and state legislatures to change the Court’s answer in Riley. Even though the Court had concluded that the Fourth Amendment’s prohibition on “unreasonable searches and seizures” generally prevents the police from engaging in such searches, Alito would allow Congress and state legislatures to decide that “the legitimate needs of law enforcement” outweigh the “privacy interests of cell phone owners.”
Tellingly, no other Justice joined Alito’s opinion. Not one. And that tells us a great deal about the “democratic processes” position adopted by Judge Sutton and advanced by opponents of marriage equality. What the rest of the Court implicitly recognized in Riley was that Alito’s approach is fundamentally wrong. Congress and state legislatures may be able to supplement the Constitution’s protections—indeed, they may sometimes be well-suited to doing so, as Alito noted in a different Fourth Amendment case about GPS monitoring—but they cannot scrap them.
Indeed, that is a point so fundamental to our constitutional order that the Supreme Court has made it repeatedly in various contexts, noting that fundamental constitutional protections “depend on the outcome of no elections,” and “[a] citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.” As recently as 2011, in a campaign finance case, Roberts explained that “the whole point of the First Amendment is to protect speakers against unjustified government restrictions on speech, even when those restrictions reflect the will of the majority.” The Constitution, not voters, has the ultimate legal authority. In the past, the Court hasn’t treated the Fourteenth Amendment any differently than the First and the Fourth. In 1996, for example, it struck down a state constitutional amendment adopted by state voters because it violated the Fourteenth Amendment.
When the Court considered the scope of the Fourth Amendment’s protections in Riley, it didn’t say it was up to Congress or state legislatures to decide how much privacy Americans enjoy when it comes to their cell phones. Instead, the Court considered the text and history of the Fourth Amendment, as well as the Court’s precedents. The Court should do the same thing this year when it considers the scope of the Fourteenth Amendment’s protections in the marriage equality cases. If it does, there’s no question what the result should be: a resounding victory for marriage equality.
By: Brianne J. Gorod, Appellate Counsel at The Constitutional Accountability Center; The New Republic, April 23, 2015
“Enshrining Discrimination In Constitutional Stone”: Cruz Leads The Race To The Bottom On Marriage Equality
Sen. Ted Cruz (R-Texas) attended an event in Manhattan this week, though the venue was a little surprising: the reception for the Texas Republican was held at the apartment of “two prominent gay hoteliers. At the gathering, Cruz reportedly said he would love his children regardless of their sexual orientation, and according to the event’s moderator, the far-right senator “told the group that marriage should be left up to the states.” As best as I can tell, there was no recording of the event, at least not one that’s available to the public, so it’s hard to know exactly what he said.
But before there’s speculation about whether Cruz’s conservative backers will revolt over the senator’s tone, consider the Texas lawmaker’s latest legislative push. Bloomberg Politics reported late yesterday:
Days before the U.S. Supreme Court hears arguments on same-sex marriage, Senator Ted Cruz has filed two bills to protect states that bar gay couples from marrying.
Cruz’s legislation would establish a constitutional amendment shielding states that define marriage as between one woman and one man from legal action, according to bill language obtained by Bloomberg News. A second bill would bar federal courts from further weighing in on the marriage issue until such an amendment is adopted.
To be sure, this doesn’t come as too big a surprise. Cruz has been threatening to pursue an anti-gay constitutional amendment for quite a while, and he started telegraphing his “court-stripping” effort soon after launching his presidential campaign.
For that matter, it’s also not too surprising that Cruz would use his Senate office to push doomed proposals intended to boost his national candidacy.
But beware of the race to the bottom.
Louisiana Gov. Bobby Jindal (R) yesterday made a small public splash, trying to position himself as the GOP field’s far-right leader on the culture war. It seems very likely that Scott Walker, Mike Huckabee, Ben Carson, and others will all make similar claims.
It’s against this backdrop that Cruz not only wants to enshrine discrimination in constitutional stone, he wants to prevent federal courts from even hearing cases related to marriage equality.
In other words, as the race for the Republicans’ presidential nomination continues to unfold, we’re confronted with a very real possibility of seeing one candidate say, “I’m the most anti-gay candidate and I’m going to prove it,” only to soon after hear another respond, “No, I’m the most anti-gay candidate and I’m going to prove it.”
The race to the bottom may impress far-right social conservatives, but it will push the GOP even further from the American mainstream.
By: Steve Benen, The Maddow Blog, April 25, 2015
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